Jefferson v. National Railroad Passenger Corporation
Filing
23
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 10/21/2015. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
CAROL JEFFERSON
:
v.
:
Civil Action No. DKC 15-2275
:
NATIONAL RAILROAD PASSENGER
CORPORATION d/b/a Amtrak
:
MEMORANDUM OPINION
Presently pending and ready for resolution is Defendant’s
motion to dismiss or for more definite statement.
(ECF No. 6).
The issues are sufficiently briefed, and no hearing is deemed
necessary.
Local Rule 105.6.
For the following reasons, the
motion will be granted.
I.
Background
In
a
George’s
complaint
County
on
filed
July
7,
in
the
2014,
Circuit
Court
Plaintiff
for
Carol
Prince
Jefferson
(“Plaintiff”), who was representing herself at the time, asserts
that she fell when an elevated edge of one of the bricks in the
main room floor of a train station stopped her left foot as she
was walking. She does not identify the train station, or state
when the accident occurred. She suffered injury to her left
lower leg, including a tear of the anterior talofibular ligament
of her left ankle.
Before removing the action to this court,
Defendant
motion
filed
a
to
dismiss
(a)
for
insufficient
process, (b) lack of jurisdiction, (c) failure to state a claim,
or alternatively, (d) for more definite statement.
(ECF No. 6).
When the complaint was filed in state court, that court
issued a summons on July 18, 2014, which, pursuant to state law,
was effective for service only if served within 60 days.
not served.
It was
A second summons was issued on January 26, 2015,
but Defendant Amtrak (“Amtrak”) asserts that it was not served
until July 6, 2015.
(See ECF No. 1, at 1).
On August 4, 2015,
Amtrak removed the action to this court, asserting jurisdiction
under 28 U.S.C. §§ 1331 and 1349.
(Id. at 1-2).
On the same
day, Amtrak filed the pending motion to dismiss or for more
definite statement.
Plaintiff
filed
a
(ECF No. 6).
response
in
Now represented by counsel,
opposition
(ECF
No.
21),
and
Amtrak replied (ECF No. 22).
II.
Analysis
Amtrak contends: (1) that the summons was dormant by the
time it was served, making service insufficient; and (2) that it
was
not
meaning
served
that
within
the
120
case
days
of
should
be
the
issuance
dismissed
of
for
process,
lack
of
jurisdiction.
“State law governs the sufficiency and service of process
before removal to federal court.”
Sharp v. Am. Honda Motor Co.,
Inc., No. 09-cv-2622, 2009 WL 4061761, at *1 (D.Md. Nov. 19,
2
2009) (citing Eccles v. Nat’l Semiconductor Corp., 10 F.Supp.2d
514, 519 (D.Md. 1998)).
Maryland Rule 2-113 provides that:
A summons is effective for service only if
served within 60 days after the date it is
issued.
A summons not served within that
time shall be dormant, renewable only on
written request of the plaintiff.
There is no question that neither summons was served within 60
days of its issuance.
dormant
and
service
Under Maryland law, each summons became
was
not
effective.
Plaintiff
does
not
really contest the matter, but rather states that, if the case
is not dismissed and Amtrak refuses to waive service, she will
request the issuance of process from this court and immediately
serve
the
Defendant.
Thus,
Defendant’s
complaint
about
the
insufficiency of service of process is well taken.
Maryland Rule 2-507(b) provides that:
[A]n action against any defendant who has
not been served or over whom the court has
not
otherwise
acquired
jurisdiction
is
subject to dismissal as to that defendant at
the expiration of 120 days from the issuance
of
original
process
directed
to
that
defendant.
A defendant may file a motion to dismiss when it learns of a
case, but has not been served timely.
Conwell Law LLC v. Tung,
221 Md.App. 481, 510 (2015) (citing Reed v. Cagan, 128 Md.App.
641 (1999)).
When a party seeks dismissal of an action
under Rule 2-507 (“Dismissal for lack of
3
jurisdiction or prosecution”), the decision
to grant or deny the dismissal is committed
to the sound discretion of the trial court.
See Powell v. Gutierrez, 310 Md. 302, 30910, 529 A.2d 352 (1987). The trial court’s
decision will be overturned on appeal only
“in extreme cases of clear abuse.” Stanford
v. District Title Ins. Co., 260 Md. 550,
555, 273 A.2d 190 (1971). The responsibility
is on the trial court to weigh and balance
the rights, interests, and reasons of the
parties in light of the public demand for
prompt
resolution
of
litigation.
See
Langrall, Muir & Noppinger v. Gladding, 282
Md. 397, 400, 384 A.2d 737 (1978). The
primary focus of the inquiry should be on
diligence and whether there has been a
sufficient amount of it. See Stanford, 260
Md. at 555, 273 A.2d 190. The Court of
Appeals has announced that it “is totally
committed to the proposition that ‘justice
delayed is justice denied.’” Id. at 554, 273
A.2d 190.
Reed, 128 Md.App. at 646.
Under Rule 2-507(e), “a court may
defer the dismissal of a case if the plaintiff can prove ‘that
the delay is not completely unjustified’ and that the delay did
not ‘substantially prejudice[]’ the defendant.”
Rusnakova v.
World Kitchen, LLC, No. RDB-12-03650, 2013 WL 1932940, at *2
(D.Md. May 8, 2013) (quoting Reed, 128 Md.App. at 648).
Plaintiff does not provide valid justification for failing
to serve Defendant.
She claims that, as a pro se litigant, she
did not know that she had to do anything other than file the
complaint and request issuance of process.
The
actual
request
for
issuance
4
of
the
(ECF No. 21, at 3).
summons,
however,
explicitly
recited
that
it
should
service.”
(ECF No. 22-1, at 2).
be
returned
to
her
“for
Even if she didn’t receive
that summons from the clerk due to an error in the address, she
waited until January 2015 to request reissuance, and then didn’t
serve
it
until
reissuance,
an
July.
She
action
obviously
inconsistent
knew
with
enough
her
to
newly
belief that she didn’t need to do anything more.
request
professed
She offers no
excuse for failing to serve the second summons while it was
active.
Plaintiff has not demonstrated a justification for the
delay.
Prejudice from the passage of time is sometimes inferable,
and it is often the case that “[t]he delay itself gives rise to
an inference of prejudice.”
Sharp, 2009 WL 4061761 at *2; see
also Rusnakova, 2013 WL 1932940 at *4.
Here, Plaintiff waited
three years after the incident to file suit, and then failed to
serve Defendant for another year.
*2
(noting
that
a
“significant”
supported dismissal).
because
it
underlying
delay
in
service
limitations
a
plaintiff
and
to
policies
the
limitations period by nearly a year beyond its expiration.”
Id.
event,
permitting
statutes
extend
at *2.
by
ten-month
Such a significant delay is unacceptable
“frustrate[s]
them
See Sharp, 2009 WL 4061761 at
Even if Amtrak had some notice contemporaneous with the
it
points
out
that,
because
5
of
the
delay,
finding
witnesses with accurate recall will be difficult, and it might
be problematic to have an expert examine the allegedly dangerous
condition.
III. Conclusion
Under the circumstances, the equities all favor dismissal.
Accordingly, Defendant’s motion to dismiss will be granted by
separate order.
/s/
DEBORAH K. CHASANOW
United States District Judge
6
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