Chen v. Mayor & City Council of Baltimore et al
Filing
21
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 2/22/13. (c/m 2/22/2013 aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BOBBY CHEN,
:
Plaintiff,
:
v.
:
Civil Action No. GLR–11-3227
MAYOR & CITY COUNCIL OF
BALTIMORE, et al.,
:
:
Defendants.
:
MEMORANDUM OPINION
THIS MATTER is before the Court on Defendants Mayor and
City Council of Baltimore (“City”) and individually named City
Employees’
(“City
Employees”)
(collectively
the
“Defendants”)
Motion to Vacate Grant of Extension of Time to Effect Service of
Process and to Dismiss the Complaint or, in the Alternative, to
Dismiss the Complaint for Insufficient Service of Process.
No. 14).
(ECF
Specifically, Defendants seek to dismiss counts I, II,
IV, and V of Plaintiff Bobby Chen’s Complaint.
Also pending
before the Court is Mr. Chen’s Motion for Leave to File Surreply
to Defendants’ Reply.
This
case
Defendants
(ECF No. 19).
concerns
negligently,
Mr.
and
in
Chen’s
allegations
violation
of
the
that
Due
the
Process
clause of the United States Constitution, deprived him of his
property
caused
by
by
represents
razing
City
yet
his
building
Employees.
another
At
chapter
in
its
in
order
core,
the
to
conceal
however,
seemingly
damage
this
case
never-ending
saga concerning whether, in this circuit, a showing of good
cause is required to extend the time for service beyond 120
days.
The issues before the Court are (1) whether the court erred
in
granting
Mr.
Chen
a
sixty-day
time
extension
to
effect
service of process without requiring a showing of good cause,
(2)
whether,
in
the
alternative,
the
Court
should
grant
Defendants’ Motion to Dismiss counts II and V of the Complaint
against
the
process,
City
and
(3)
Employees
whether
due
Mr.
to
Chen
insufficient
was
afforded
service
of
sufficient
opportunity to contest the matters raised in Defendants’ initial
Motion.
The
issues
necessary.
have
been
fully
briefed
and
See Local Rule 105.6 (D.Md. 2011).
no
hearing
is
Because Mr. Chen
failed to make a showing of good cause in his request to extend
the
time
for
Defendants’
service
Motion
to
beyond
Vacate
120
days,
Grant
of
the
Court
Extension
will
of
grant
Time
Effect Service of Process and to Dismiss the Complaint.
to
Mr.
Chen’s Motion for Leave to File Surreply will also be denied
because Mr. Chen was afforded sufficient opportunity to contest
the matters raised in Defendants’ initial Motion.
Motion
betrays
his
intentions
arguments.
2
to
merely
Moreover, his
regurgitate
old
BACKGROUND1
I.
A.
Factual Background
Mr. Chen is the owner of a residential real property known
as 1620 East Chase Street (the “Property”).
Mr. Chen alleges he
was in the process of rehabilitating the Property when the City,
City
Employees,
and
the
City’s
contractor,
P&J
Contracting
Company, Inc. (“P&J”), negligently damaged the Property while
razing the adjacent row-house at 1622 East Chase Street, which
is
owned
repairing
by
the
the
City.
damage
According
they
caused,
to
Mr.
Chen,
Defendants
instead
of
determined
to
conceal their negligence and raze the Property on the pretext
that it was an unsafe structure.
B.
Procedural Background
Mr. Chen, through legal counsel, first filed this action in
2009.
See Chen v. Mayor & City Council of Balt. (Chen I), 1:09-
cv-00047
(D.Md.
Nov.
19,
2009).
After
granting
Mr.
Chen’s
attorneys’ motion to withdraw on August 27, 2009, the Court
granted
Mr.
Chen
an
extension
to
file
a
Rule
16
Conference
Statement, and ordered that Mr. Chen submit a status report by
September 28, 2009, noting whether he had retained new counsel.
1
Unless otherwise noted, the following facts are taken from
the Complaint and Defendants’ Motion to Dismiss. As Defendants’
arguments amount to a prototypical procedural challenge, the
Court will not belabor the underlying factual background which
gave rise to this cause of action.
Nevertheless, to provide
some context, the Court will delve into a brief recitation of
the most salient details.
3
(Chen I, ECF Nos. 30, 33).
The Court also imposed a deadline of
October 28, 2009, for Mr. Chen to retain counsel.
(Id.)
After
a second request for extension of time, and because Mr. Chen had
failed to inform the Court of a workable address for receipt of
notices,2
the
Court
denied
the
request
without prejudice on November 10, 2009.
Mr.
Chen
filed
this
second
and
dismissed
Chen
I
(Chen I, ECF No. 40).
action
(Chen
II)
pro
se
on
November 10, 2011, two days prior to what would have been three
years from the date of the November 12, 2008 demolition of the
Property.
(Chen II, ECF No. 1).
On November 28, 2011, the
Court issued an Order directing the Clerk to prepare summonses
and
informed
service
could
Mr.
be
Chen
in
detail
completed
federal and state rules.
by
as
to
the
references
to
manner
the
(Chen II, ECF No. 5).
in
which
applicable
The Clerk’s
office mailed the Order and Summonses to Mr. Chen at the address
he provided.
The mailings were not returned to the Clerk’s
office as undeliverable.
The 120-day period for service lapsed on March 9, 2012, and
on March 22, 2012, the Court issued a Show-Cause Order to Mr.
Chen, querying why the case should not be dismissed without
2
Pursuant to Local Rule 101.1(b)(ii) (D.Md. 2011), Mr. Chen
had a duty to “promptly notify the Clerk of any change of
address, including e-mail address, irrespective of any changes
noted on a pleading or other document.”
Under the rule, this
obligation is continuing, and the Court may enter an order
dismissing any affirmative claims for relief and may enter a
default judgment.
4
prejudice.
(Chen II, ECF No. 7).
Thereafter, on April 11,
2012, Mr. Chen sought an extension of time to effect service of
process.
(Chen II, ECF No. 8).
provided
three
justifications
In his memorandum, Mr. Chen
for
his
failure
to
perform
service: (1) he claimed he never received the Court’s November
28,
2011
Order,
or
the
Summonses;
(2)
he
believed
the
U.S.
Marshal’s Office would make service on his behalf; and (3) the
statute of limitations would bar his case if it was dismissed.
(Chen II, ECF No. 8 ¶¶ 2, 4, 6).
contentions,
on
April
16,
2012,
Persuaded by Mr. Chen’s
the
Court
issued
an
Order
granting Mr. Chen’s request and provided a sixty-day extension
to
perform
service.
(Chen
II,
ECF
No.
9).
Mr.
Chen
was
forewarned, however, that failure to effect service of process
within the sixty-day extension would result in dismissal of his
case without prejudice.
(Id.)
As evidenced by the record, Mr. Chen made no effort at
service of the second Summons until on or about June 12, 2012,
just three days prior to its expiration.
(See ECF No. 12).
As
a result of this, and because Mr. Chen did not file any record
with the Court evidencing the completion of service by June 12,
2012, the Court dismissed Chen II.3
Defendants now seek to have the case dismissed on grounds
that the sixty-day extension requested on April 11, 2012 was
3
Chen II was transferred from Judge Benson E. Legg on June
7, 2012.
5
improvidently granted, given Mr. Chen’s failure to provide good
cause for failing to perform service.
contend
that,
dismissed
at
against
the
very
the
least,
City
Alternatively, Defendants
the
Employees
Complaint
due
to
should
be
insufficient
service.
II.
A.
DISCUSSION
Standard of Review
Federal Rule of Civil Procedure 4(m) permits dismissal of
an action without prejudice “[i]f a defendant is not served
within 120 days after the complaint is filed . . . .”
The rule
allows the court to either dismiss on motion or sua sponte,
after notice to the plaintiff.
plaintiff
shows
good
cause
Fed.R.Civ.P. 4(m).
for
the
failure,
the
“But if the
court
extend the time for service for an appropriate period.”
B.
must
Id.
Analysis
1.
The Status of the “Good Cause” Requirement Within this
Circuit
The
Court
grants
Defendants’
Motion
to
Dismiss
the
Complaint because Mr. Chen failed to make a showing of good
cause
in
his
request
for
a
sixty-day
extension
to
perform
service.
As a preliminary matter, Mr. Chen argues that Defendants’
Motion to Dismiss is untimely because, pursuant to Local Rule
105.10 (D.Md. 2011), Defendants failed to seek reconsideration
of the Court’s April 16, 2012 Order, within fourteen days of
6
that Order.4
The Court will summarily dismiss this argument,
however, because (1) Defendants did not have an opportunity to
present
their
objection
to
Mr.
Chen’s
request
for
extension
since they were unquestionably not parties to this action during
that time frame; and (2) it is well established that, where, as
here,
the
issue
of
good
cause
has
not
had
the
benefit
of
adversarial briefing, a grant of an extension is provisional
only, and a defendant retains the right to advance a challenge
later.5
Beyond this preliminary contention, the parties disagree
over a basic question: whether precedent established in Mendez
v.
Elliot,
45
F.3d
75
(4th
Cir.
1995),
remains
good
law.
Defendants argue that the 120-day limit to effect service is an
outer limit and that the district court has no discretion in
allowing a time extension beyond that limit absent a showing of
good cause.
law
from
United
Conversely, Mr. Chen maintains that subsequent case
the
States
United
Court
States
of
Supreme
Appeals
Court,
for
the
no
less,
Fourth
and
the
Circuit,
4
Rule 105.10 states that “[e]xcept as otherwise provided in
Fed. R. Civ. P. 50, 52, 59, or 60, any motion to reconsider any
order issued by the Court shall be filed with the Clerk not
later than fourteen (14) days after entry of the order.”
5
See Omega U.S. Ins., Inc. v. Pa. Nat. Mut. Cas. Ins. Co.,
No. ELH-11-2297, 2012 WL 115422, at *5 (D.Md. Jan. 13, 2012)
(collecting cases that implicitly support granting plaintiff’s
motion for extension, while reserving defendant’s right to move
to vacate the extension as improvidently granted); Hai Xu v. FMS
Fin. Solutions, LLC, No. ELH–10–3196, 2011 WL 2144592, at *3
(D.Md. May 31, 2011) (same); Williams v. CompUSA, No. ELH-102219, 2011 WL 2118692, at *3 (D.Md. May 27, 2011) (same).
7
eviscerates the import and authority of Mendez.
In Mendez, the Fourth Circuit held that, under Federal Rule
of Civil Procedure 4(m), a district court judge does not have
discretion
in
allowing
a
time
extension
limit, absent a showing of good cause.
beyond
the
Id. at 78-79.
120-day
By so
holding, the Mendez court contradicted every other circuit that
had interpreted Rule 4(m) and relied on the erroneous assumption
that
Rule
4(m)
was
predecessor, Rule 4(j)6.
substantively
the
same
rule
as
its
See Hammad v. Tate Access Floors, Inc.,
31 F.Supp.2d 524, 526 (D.Md. 1999) (“Among the circuit courts
that have addressed this issue, the Fourth Circuit stands alone
in holding that Rule 4(m) does not permit a district court to
grant the plaintiff a discretionary extension of time to effect
service of process.”).
This assumption, however, is expressly
contradicted by the Advisory Committee’s Notes to Rule 4(m),
which state that:
[t]he new subdivision explicitly provides that the
court shall allow additional time if there is good
cause for the plaintiff’s failure to effect service in
the prescribed 120 days, and authorizes the court to
relieve a plaintiff of the consequences of an
application of this subdivision even if there is no
6
Prior to its replacement by Rule 4(m), Rule 4(j) provided
that “if a service of the summons and complaint is not made upon
a defendant within 120 days after the filing of the complaint
and the party on whose behalf such service was required cannot
show good cause why such service was not made within that
period, the action shall be dismissed as to that defendant . . .
.” Fed.R.Civ.P. 4(j) (1988).
8
good cause shown.
Id.
at
527
(quoting
Advisory
Committee’s
Notes
on
1993
Amendments to Fed.R.Civ.P. 4(m)(emphasis added)).
More significantly, the Supreme Court has had occasion to
interpret
Rule
4(m)
since
Mendez.
In
Henderson
v.
United
States, citing to the Advisory Committee’s Notes to the 1993
Amendment to Rule 4, the Supreme Court reasoned that Rule 4(m)
permits the district courts to enlarge the time for service
“even if there is no good cause shown.”
(1996).
517 U.S. 654, 662
Although this interpretation was not central to the
court’s holding in Henderson, some Fourth Circuit courts have
viewed
it
as
sufficiently
persuasive
to
consider
it
authoritative. In refusing to follow Mendez, for example, the
court in Hammad stated that:
[i]n light of the Supreme Court’s clear explication of
the meaning of Rule 4(m) in Henderson to allow
discretionary extensions of time for service of
process, in conjunction with the other circuit courts’
unanimous rejection of the Mendez court’s position,
this court concludes that Mendez is no longer good law
and that, if given the opportunity, the Fourth Circuit
perforce would adopt the interpretation of Rule 4(m)
held by the Supreme Court and the other circuit
courts.
31 F.Supp.2d at 527; accord Melton v. Tyco Valves & Controls,
Inc., 211 F.R.D. 288, 289-90 (D.Md. 2002); Coates v. Shalala,
914 F.Supp. 110, 113 (D.Md. 1996).
The district court’s analysis is persuasive, to be sure.
And in unpublished decisions since Mendez, the Fourth Circuit
9
has
itself
appeared
to
reverse
course.7
Yet,
despite
the
apparent avalanche of cases within this circuit that question
the
validity
of
Mendez,8
this
affirm the authority of Mendez.
Court’s
most
recent
decisions
See Omega, 2012 WL 115422, at
*5 n.2 (“To my knowledge, since Henderson, the Fourth Circuit
has not revisited in a reported opinion the issue of good cause
in regard to service of process.”); Shlikas v. SLM Corp., No.
WDQ-09-2806,
2011
WL
2118843,
at
*3
(D.Md.
May
25,
2011)
(“Because [plaintiff] has not shown good cause for his failure
to effect proper service within the extended deadline, the court
must dismiss the action.”) (citations omitted); Tenenbaum v. PNC
Bank Nat’l Ass’n, No. DKC-10-2215, 2011 WL 2038550, at *4 (D.Md.
May 24, 2011) (“[W]hile Mendez may stand on shaky footing, it
7
See, e.g., Hansan v. Fairfax Cnty. Sch. Bd., 405 F.App'x
793, 793–94 (4th Cir. 2010) (“The district court must extend the
120–day period if the plaintiff shows good cause for his failure
to serve the defendant.
Additionally, the district court has
discretion to extend the period if the plaintiff can show
excusable neglect for his failure to serve.” (citations
omitted)); Giacomo–Tano v. Levine, No. 98–2060, 1999 WL 976481,
at *2 (4th Cir. Oct. 27, 1999) (“Even if a plaintiff does not
establish good cause, the district court may in its discretion
grant an extension of time for service.”); Scruggs v.
Spartanburg Reg'l Med. Ctr., No. 98–2364, 1999 WL 957698, at *2
(4th Cir. Oct. 19, 1999) (“[W]e believe that the district court,
in its discretion, could have extended the time for proper
service of process, notwithstanding its apparent belief to the
contrary.”).
8
See Tenenbaum v. PNC Bank Nat’l Ass’n, No. DKC-10-2215,
2011 WL 2038550, at *3 (D.Md. May 24, 2011) (collecting cases
that argue the Fourth Circuit may have premised Mendez on an
erroneous assumption that the 1993 amendment to Rule 4 left
intact the requirement that a showing of good cause be made
before granting an extension).
10
remains the law of this circuit.”); Tann v. Fisher, 276 F.R.D.
190, 196 (D.Md. 2011) (“In recognition of the stare decisis
nature
of
the
Mendez,
Shlikas,
and
Tenenbaum
decisions,
I
conclude that, because plaintiff has not shown good cause for
extending the deadline for effecting service of process, I must
dismiss this case.”).
This court joins the recent groundswell
of cases affirming the import of the good cause requirement
announced in Mendez.
1.
The Nature of the “Good Cause” Requirement
Good cause “requires a showing that the plaintiff ‘made
reasonable and diligent efforts to effect service prior to the
120–day
limit,
attempts
at
which
may
service
include
were
a
showing
unsuccessful
that
due
to
plaintiff's
a
putative
defendant's evasion of process.’” Hai Xu, 2011 WL 2144592, at *2
n.3 (quoting Quann v. Whitegate–Edgewater, 112 F.R.D. 649, 659
(D.Md. 1986).
Accordingly, the court may find good cause “where
the plaintiff has ‘taken some affirmative action to effectuate
service of process upon the defendant or ha[s] been prohibited,
through no fault of his own, from taking such an affirmative
action.’”
Reynolds
Tenenbaum, 2011 WL 2038550, at *4 (quoting Vincent v.
Mem'l
Hosp.,
Inc.,
141
F.R.D.
436,
437
(N.D.W.Va.
1992)).
Other
instances
notable
where
examples
(1)
the
recognized
plaintiff
11
by
this
experienced
Court
include
difficulty
in
obtaining
defendant's
proper
address;
(2)
the
plaintiff
was
misdirected by court personnel as to proper procedure; or (3) a
defect
in
the
attempted
service
was
defendant until after the time expired.
not
thread
interference
amongst
of
some
all
of
outside
these
factor
by
the
Hoffman v. Balt. Police
Dep’t, 379 F.Supp.2d 778, 786 (D.Md. 2005).
common
revealed
At bottom, “[t]he
examples
prevented
is
the
diligent plaintiff from complying with the rule.”
that
the
otherwiseTenenbaum,
2011 WL 2038550, at *4.
“Pro se status, however, is insufficient to establish good
cause, even where the pro se plaintiff mistakenly believes that
service was made properly.” Hansan, 405 F.App’x at 794; see
McNeil v. United States, 508 U.S. 106, 113 (1993) (“[W]e have
never
suggested
that
procedural
rules
in
ordinary
civil
litigation should be interpreted so as to excuse mistakes by
those who proceed without counsel.”).
Indeed, this Court has
previously observed that “in [the] context of [a] motion to
dismiss [a] pro se plaintiff’s complaint, . . . ‘a mistaken
belief that service was proper does not constitute good cause’
and
‘neglect
and
inadvertence
do
not
suffice’”.
Tann,
276
F.R.D. at 193 (quoting Jonas v. Citibank, 414 F.Supp.2d 411, 416
(S.D.N.Y. 2006)).
12
2.
Mr. Chen’s Purported Showing of Good Cause
Mr. Chen has now had two opportunities to show good cause
for his late service (i.e., his response to the Court’s Show
Cause Order, and Defendants’ Motion to Vacate and Dismiss).
In
all instances, he provides decidedly unpersuasive variations on
the theme that fault does not rest with him: (1) he claims he
never
received
the
Court’s
November
28,
2011
Order,
or
the
Summonses; (2) he believed the U.S. Marshal’s Office would make
service
on
his
behalf;
(3)
he
laments
that
the
statute
of
limitations could bar the case if it is dismissed; (4) he argues
that he worked hard to diligently prosecute this action; and (5)
he contends that the Clerk’s office provided him with incorrect
information.
(Chen II, ECF No. 8 ¶¶ 2, 4; Pl.’s Resp. to Mot.
to Dismiss at 2-4, ECF No. 17).
None of these reasons establish
good cause.
Assuming that the U.S. Postal Service lost the mailing sent
by the Clerk’s office on November 28, 2011, Mr. Chen certainly
had no basis to think that he could rest on his laurels while
the time for performing service wasted away.
To be sure, the
rules
demand
responsible
having
the
otherwise.
summonses
and
“The
plaintiff
complaint
allowed by Rule 4(m) . . . .”
is
served
within
Fed.R.Civ.P. 4(c)(1).
the
for
time
Moreover,
notwithstanding the outside interference, courts require that a
13
plaintiff be otherwise diligent.
Tenenbaum, 2011 WL 2038550, at
*4.
Here, Mr. Chen’s actions speak louder than his words.
Chen
I was dismissed on November 10, 2009, for failure to provide the
Court with an accurate mailing address.
(Chen I, ECF No. 40).
Two years later, Mr. Chen filed his second action on November
10, 2011.
In weighing whether Mr. Chen was otherwise diligent,
it is certainly relevant that Chen II was filed just two days
prior to what would have been the running of the statute of
limitations on November 12, 2011.
Similarly, Mr. Chen concedes
that he made no efforts to serve the first Summons and indeed
made no efforts to even inquire as to the status of the case
until late March 2012, after the Summons had already expired.
To be sure, only after Chen II had been dismissed did Mr. Chen
provide
the
served
on
court
June
with
12
and
notice
13,
that
2012.
the
Defendants
One
would
had
been
expect
a
conscientious party to file a motion for extension of time for
service before the 120-day period expired.
Mr. Chen did not.
Thus, Mr. Chen’s actions do not suggest that he was acting with
the requisite degree of diligence.
Mr.
Chen’s
mistaken
belief
that
the
U.S.
Marshal
would
perform service is likewise inadequate to satisfy the good cause
requirement.
As
noted
above,
a
plaintiff’s
pro
se
status,
neglect, inadvertence, or ignorance are impotent to show good
14
cause.
Indeed there is nothing in the record to support Mr.
Chen’s claim that he ever made a request that the U.S. Marshal
perform service.
Rule 4(c)(3) provides that “[a]t the plaintiff’s request,
the court may order that service be made by a United States
marshal or deputy marshal or by a person specially appointed by
the court.”
Fed.R.Civ.P. 4(c)(3).
Rule 7(b) provides that a
request for order must be by motion, which must be in writing,
and
state
making
the
the
nature
request.
of
the
relief
Fed.R.Civ.P.
and
specific
for
Consequently,
7(b).
ground
two
things needed to happen before Mr. Chen could expect service to
be performed by a U.S. Marshal: (1) a written request for an
order
from
the
Court;
and
(2)
an
order
granting
request that the U.S. Marshal serve process.
Mr.
Chen’s
There is simply no
evidence that any of these steps occurred.
Mr. Chen’s attempt to deflect blame on the Clerk’s office
for his lack of service is also without merit.
In particular,
Mr. Chen states that after he received the Court’s March 22,
2012
Show-Cause
Order
with
regard
to
the
failure
to
serve
process, he contacted the Clerk’s office on March 26, 2012, and
attempted to obtain the original Summons so that he could serve
the City Employees the following day on March 27, 2012.
Mr.
Chen argues that he was still within the 120-day deadline at
this time and contends that the clerk he spoke with misadvised
15
that he would need to request reissuance of the Summons.
(Pl.’s
Resp. at 3).
Mr. Chen’s argument is fatally flawed, however, because he
is measuring the 120-days from the date the Summons was issued
on November 28, 2011.
period
is
measured
Rule 4(m) makes clear that the 120-day
from
the
filing
of
the
complaint.
Fed.R.Civ.P. 4(m) (“If a defendant is not served within 120 days
after the complaint is filed . . . .”) (emphasis added).
Mr.
Chen
The
filed
the
present
action
on
November
10,
2011.
Summonses were not issued until November 29, 2012, because Mr.
Chen
failed
to
pay
the
(Chen II, ECF No. 4).
had already lapsed.
filing
fee
until
November
21,
2011.
By March 26, 2012, the 120-day deadline
Thus, assuming the Clerk’s office provided
the advice Mr. Chen maintains it did, the advice was accurate.
Finally, “[t]he good cause inquiry . . . implicates the
reason for failure to effect service, not the severity of the
consequences.”
Tenenbaum,
2011
WL
2038550,
at
*5
(quoting
Pellegrin & Levine, Chartered v. Antoine, 961 F.2d 277, 283
(D.C. Cir. 1992)).
Accordingly, “it is of no moment that the
statute of limitations may pose a barrier to a new complaint . .
. .”
Tenenbaum, 2011 WL 2038550, at *5; see also Mendez, 45
F.3d at 78 (noting that a dismissal without prejudice does not
permit a plaintiff “to refile without the consequence of time
defenses, such as the statute of limitations.”); T & S Rentals
16
v.
United
(reasoning
States,
that
164
“as
F.R.D.
long
as
422,
the
426
(N.D.W.Va.
refilling
of
1996)
the
claim
eventually became time-barred, [plaintiffs] would always have
‘good cause’ for an extension.”).
Because it is clear that Mr. Chen failed to show any good
cause regarding his failure to effect service of process within
the
allowable
time
limit
of
120
days,
the
Court
grants
Defendants’ Motion to Vacate the April 16, 2012 Order, which
granted Mr. Chen a sixty-day extension, and dismisses the case
against all parties.9
3.
Motion for Leave to File Surreply
The
Court
Surreply
denies
because
he
Mr.
was
Chen’s
afforded
Motion
for
sufficient
Leave
to
File
opportunity
to
contest the matters raised in Defendants’ initial Motion.
Unless otherwise ordered by the court, surreply memoranda
are not permitted to be filed.
2011).
See Local Rule 105.2(a) (D.Md.
“Surreplies may be permitted when the moving party would
be unable to contest matters presented to the court for the
first time in the opposing party's reply.”
Khoury v. Meserve,
9
Having disposed of Defendants’ Motion on the basis of
their first argument, the Court will decline to consider their
second basis for dismissal.
Additionally, although Defendant
P&J was not a party to this Motion, the Court finds that the
improvidently granted extension permitted Mr. Chen to execute
service on P&J.
Accordingly, as provided in Federal Rule of
Civil Procedure 4(m), the Court must and will, on its own, after
notice to Mr. Chen, dismiss this action without prejudice as to
P&J as well.
17
268 F.Supp.2d 600, 605 (D.Md. 2003) (citations omitted), aff'd,
85 F.App'x 960 (4th Cir. 2004).
In
the
Reply
to
Mr.
Chen’s
Response
to
the
Motion
to
Dismiss (ECF No. 18), Defendants merely respond to Mr. Chen’s
myriad justifications as to why good cause exists and the City
Employees were properly served.
In the Court’s judgment, at no
time did Defendants use the Reply to advance new arguments in
support
Chen’s
of
their
Motion
for
two
primary
Leave
to
contentions.
File
Surreply
Conversely,
rehashes
Mr.
arguments
previously propounded in his Response to the Motion to Dismiss.
Thus, because Mr. Chen was afforded sufficient opportunity
to contest the matters raised in Defendants’ initial Motion, and
because his Motion betrays his intentions to merely regurgitate
old arguments, the Court hereby denies Mr. Chen’s Motion for
Leave to File Surreply.
See Interphase Garment Solutions, LLC
v. Fox Television Stations, Inc., 566 F.Supp.2d 460, 466 (D.Md.
2008) (denying motion for leave to file surreply where proposed
surreply merely rebutted previously briefed matters).
III. CONCLUSION
For
the
foregoing
reasons,
the
Court
will,
by
separate
Order, GRANT Defendants’ Motion to Vacate Grant of Extension of
Time to Effect Service of Process and to Dismiss the Complaint
(ECF
No.
14)
and
DENY
Mr.
Chen’s
Surreply (ECF No. 19).
18
Motion
for
Leave
to
File
Entered this 22nd day of February, 2013
/s/
___________________________
George L. Russell, III
United States District Judge
19
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