Wilson et al v. Turner et al
Filing
13
MEMORANDUM TO COUNSEL re extension of 120-day period under 4m rule. Signed by Judge Ellen L. Hollander on 5/12/2014. (aos, Deputy Clerk)
United States District Court
District Of Maryland
Chambers of
Ellen Lipton Hollander
District Court Judge
101 West Lombard Street
Baltimore, Maryland 21201
410-962-0742
May 12, 2014
MEMORANDUM TO COUNSEL
Re:
Wilson et al. v. Turner et al.
Civil Action No. 1:13-cv-03497-ELH
Dear Counsel:
As you know, plaintiffs Rosalee Wilson and Quintel Wilson, Sr. filed suit on November
20, 2013, against three defendants: Michael Turner; America’s Financial Trust, LLC (“AFT”);
and Chigozie (Chazie) Nnabue. See ECF 1 (“Complaint”). In an Order dated April 11, 2014
(ECF 10), I observed that it appeared from the docket that only Mr. Nnabue had been served. Id.
at 1-2.
Plaintiffs filed an Amended Complaint (ECF 7) on March 24, 2014. However, the filing
of the Amended Complaint did not reset the 120-day clock under Rule 4(m). See, e.g., Locke v.
Fedex Freight, Inc., 2013 WL 5925542, at *5 (D. Colo. Nov. 4, 2013) (“[T]he 120-day period in
Rule 4(m) does not re-start upon the filing of an amended complaint for any defendants
identified in the original pleading.”); Sellers v. Royal Bank of Canada, 2013 WL 1222668, at *1
(S.D.N.Y. Mar. 21, 2013) (“The 120 day time period within which to serve process on
defendants under Rule 4(m) runs from the filing of the original complaint and not from the filing
of the amended complaint.”). And, because more than 120 days had passed since the filing of
the original Complaint, I ordered plaintiffs “to show good cause within 21 days of the date of
[the] Order why the suit should not be dismissed, without prejudice, as to defendants Michael
Turner and America’s Financial Trust, LLC, pursuant to Fed. R. Civ. P. 4(m) and Local Rule
103.8(a).” ECF 10 at 3.
Plaintiffs filed a timely response on April 29, 2014. See ECF 12. They maintain that Mr.
Nnabue was served on January 15, 2014, both in his individual capacity and in his capacity as
AFT’s resident agent. Id. at 2. Because Mr. Nnabue was served in both capacities, however,
plaintiffs explain that “there was some confusion and it appears as if the only executed summons
returned” to this Court “was the one showing service to him in his individual capacity.” ECF 12
at 2. In any event, plaintiffs aver that AFT has been served, id. at 1-2, because Mr. Nnabue “is
the resident agent for [AFT] and as such may accept service on their behalf.” Id. at 2; see Fed.
R. Civ. P. 4(h)(1)(B) (allowing service upon an agent of a corporation or unincorporated
association).
Moreover, on April 21, 2014, plaintiffs filed a document that they identify as “the
executed summons for Mr. Nna[bue] as resident agent of [AFT.]” ECF 12 (citing ECF 11,
“Affidavit of Service”). The Affidavit of Service indicates that on January 15, 2014, service was
effected “upon Chigozie (Chazie) Nnabue, R/A for America’s Financial Trust, LLC, by personal
service.” ECF 11.
In view of the foregoing, I am satisfied that, with regard to AFT, plaintiffs have made a
prima facie showing of compliance with Fed. R. Civ. P. 4(m) and Local Rule 103.8(a).1
As for defendant Michael Turner, plaintiffs acknowledge that Turner has not yet been
served. ECF 12 at 2. As explained in both their response (ECF 12) and an attached Affidavit of
Jane Santoni, Esq. (ECF 12-1), plaintiffs’ counsel in this matter, plaintiffs have made various
attempts to serve Turner. In particular, plaintiffs explain that attempts to serve Turner at AFT—
which apparently was his employer as of at least December 2013—proved unsuccessful, possibly
because plaintiffs did not know the relevant suite number at AFT’s 305 E. Joppa Road location
in Towson, Maryland. ECF 12 at 1-2; ECF 12-1.2 Plaintiffs lack a home address for Turner and
aver that, in part because of his common name, they have been unable to determine his address.
ECF 12 at 4; ECF 12-1 at 2.
In light of plaintiffs’ difficulties in serving Turner, they “belie[ve] that the only way to
confirm Mr. Turner’s accurate address is through discovery to [AFT].” Id. As such, they
“request that this Court extend the time to serve Mr. Turner until 30 days after discovery
responses are due from [AFT].” Id. However, in the normal course, discovery would commence
only after (1) all defendants are served with the operative complaint, (2) all defendants file an
answer, and (3) any motions to dismiss are resolved by the Court. Accordingly, plaintiffs’
request amounts to an indeterminate, potentially months-long extension of the Rule 4(m) period.
In connection with plaintiffs’ explanations as to why Turner has not yet been served,
plaintiffs also note that they had been engaged in settlement efforts. Id. at 2. They assert:
“Courts have also found that good cause for failure to serve a defendant may exist when serious
settlement efforts are being undertaken between the plaintiff and one of the codefendants and
that settlement between these parties would negate the need to serve the non-served defendant.”
Id. However, the cases on which plaintiffs rely involve circumstances in which plaintiffs had
successfully effectuated service shortly after the 120-day period had expired. Id. (citing
Gambino v. Village of Oakbrook, 164 F.R.D. 271 (M.D. Fla. 1995) (excusing non-compliance
1
Plaintiffs noted that, as of April 29, 2014, AFT had “failed to respond to the law suit.”
ECF 12 at 2. Indeed, as of today, no counsel has entered an appearance on behalf of AFT and no
responsive pleading to either the original Complaint or the Amended Complaint has been filed.
Assuming that service on AFT was proper, AFT must respond to the Amended Complaint
consistent with the Federal Rules of Civil Procedure and the Local Rules of this Court.
2
Plaintiffs also identify a further complication; the property management company for
305 E. Joppa Road informed plaintiffs’ counsel that “although [AFT] is still using the address as
an official address, it moved from the premises without a forwarding address,” apparently in
early 2014. ECF 12 at 4; see also ECF 12-1 at 2.
-2-
with 120-day requirement where plaintiff “tried to settle this case up to three days before the 120
day deadline and then delivered the Amended Complaints and Summonses overnight to the
respective law enforcement agency to effectuate service”); Assad v. Liberty Chevrolet, Inc., 124
F.R.D. 31 (D.R.I. 1989) (13-day delay in service beyond 120-day limit deemed excusable)).
Based on plaintiffs’ representations, it is not apparent that settlement discussions are ongoing;
they assert only that, “prior to dismissing Mr. Nna[bue] as a defendant, the Plaintiffs were
engaged in settlement efforts.” ECF 12 at 3. Nnabue was dismissed as a defendant on April 11,
2014. ECF 10 (Order) at 2. Moreover, plaintiffs cite no authority endorsing an open-ended
exemption from compliance with Rule 4(m) similar to the one they have sought.3 As noted,
plaintiffs are of the view that “the only way to confirm Mr. Turner’s accurate address is through
discovery to Defendant America’s Financial Trust.” ECF 12 at 4. But, they have not requested
that this Court allow preliminary discovery from AFT regarding Mr. Turner’s identity or
location.
In light of plaintiffs’ apparently legitimate difficulties in serving Turner, I am persuaded
that an extension of the 120-day period under Rule 4(m) is warranted. See, e.g., Matthews v.
Fordham, 2014 WL 1122818, at *2 (D. Md. Mar. 19, 2014) (Blake, J.) (allowing for extension
where defendant “could not be located”). Nevertheless, the Rule 4(m) deadline must be
extended for an “appropriate” time. Therefore, by June 12, 2014, plaintiffs must either (1) serve
Turner and file proof of service, or (2) file an appropriate motion seeking preliminary discovery
on the limited issue of Turner’s identity and whereabouts, and requesting a specified extension of
the Rule 4(m) deadline. If neither filing is made by that date, Turner will be dismissed as a
defendant, without prejudice.
Despite the informal nature of this Memorandum, it is an Order of the Court, and the
Clerk is directed to docket it as such.
Very truly yours,
/s/
Ellen Lipton Hollander
United States District Judge
3
I note that, upon encountering difficulty in serving Mr. Turner within Rule 4(m)’s 120day period, plaintiffs did not seek an extension until after the Court issued its show cause order
(ECF 10).
-3-
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