Potocnik v. Anoka County et al
ORDER DISMISSING CASE(Written Opinion). Signed by Senior Judge David S. Doty on 3/26/2014. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 13-1103(DSD/TNL)
Anoka County, et al.,
This matter is before the court sua sponte. Without effective
service or waiver of process, the court lacks personal jurisdiction
over a defendant.
See Printed Media Servs., Inc. v. Solna Web,
Inc., 11 F.3d 838, 843 (8th Cir. 1993).
A plaintiff must make a
prima facie showing that the court has personal jurisdiction over
See Digi-Tel Holdings, Inc. v. Proteq Telecomms.
(PTE), Ltd., 89 F.3d 519, 522 (8th Cir. 1996).
whether personal jurisdiction exists, the court views the evidence
in the light most favorable to the plaintiff and may consider
matters outside the pleadings. Id.; see Dever v. Hentzen Coatings,
Inc., 380 F.3d 1070, 1072-73 (8th Cir. 2004).
Where “a defendant is not served within 120 days after the
complaint is filed, the court - on motion or on its own after
Potocnik’s March 19, 2014, letter to the court indicates
that he is on notice of the relevant service defects and the
potential for dismissal of the claims against the unserved
See ECF No. 93; cf. Dace v. Smith-Vasquez, 658 F.
prejudice against that defendant or order that service be made
within a specified time.”
Fed. R. Civ. P. 4(m).
Brian Potocnik failed to serve defendants City of Minneapolis and
City of St. Paul (collectively, unserved defendants) within the
120-day time period prescribed by the rule.
If a plaintiff shows good cause for the failure, however, “the
court must extend the time for service for an appropriate period.”
Id. Here, Potocnik explains that “[d]efendants Minneapolis and St.
Paul were not served inadvertently due to a clerical error on
ECF No. 93.
not constitute good cause.
Mere inadvertence, however, does
See Salow v. Circus-Circus Hotels,
Inc., 108 F.R.D. 394, 396 (D. Nev. 1985).
As a result, Potocnik
cannot demonstrate good cause for the failure of service.
Even if a plaintiff cannot establish good cause for the
failure of service, the court may nonetheless extend the time for
service if the plaintiff can show “excusable neglect.”
Iowa Cnty., Iowa, 628 F.3d 953, 957 (8th Cir. 2010).
determination of whether neglect is excusable is at bottom an
Supp. 2d 865, 872 (S.D. Ill. 2009) (“While the rule generally
requires notice [by the court] before an action is dismissed
pursuant to Rule 4(m), the purpose of such notice is to give the
plaintiff an opportunity to show good cause for the failure ....
Under th[e]se circumstances, [p]laintiff cannot show good cause and
notice [by the court] pursuant to Rule 4(m) would serve no useful
surrounding the party’s omission.”
at 959 (citation and
internal quotation marks omitted). “In determining whether neglect
is excusable, the following factors are particularly important: (1)
the possibility of prejudice to the defendant, (2) the length of
the delay and the potential impact on judicial proceedings, (3) the
reason for the delay, including whether the delay was within the
party’s reasonable control, and (4) whether the party acted in good
faith.” Id. (citations omitted). “These factors do not bear equal
weight as the reason for delay is generally a key factor in the
Id. (citation omitted).
Here, as already explained, the delay was attributable solely
to a “clerical error” of Potocnik.
Such a reason was within
Potocnik’s control and is not of the sort that has been found to
constitute excusable neglect.
See Metcalf v. City of Minneapolis,
No. 11-3023, 2012 WL 2357573, at *4 (D. Minn. June 20, 2012)
Further, the unserved defendants were not
served until 314 days after the filing of the complaint, and to
proceedings, as the unserved defendants did not file answers or
motions to dismiss and the other defendants have proceeded through
Potocnik informed the court on March 19, 2014, of his
untimely attempt to accomplish service on the unserved defendants.
See ECF No. 93. Such an attempt, however, does not comply with the
requirements of Rule 4.
As a result, the court considers
Potocnik’s attempted service ineffective.
correcting the error; the February 21, 2014, order of the court
granting the motions to dismiss and for judgment on the pleadings
specifically excluded the unserved defendants.
See ECF No. 79, at
In sum, even though there is no evidence of bad faith,
totality of the circumstances [does] not warrant a discretionary
Kurka, 628 F.3d at 959.
Thus, dismissal without
prejudice is warranted as to the claims against the unserved
As a result, all defendants have now been dismissed
from the matter.
Accordingly, IT IS HEREBY ORDERED that Potocnik’s claims
against the City of Minneapolis and the City of St. Paul are
dismissed without prejudice, and the Clerk of Court is directed to
enter final judgment as to all parties.
LET JUDGMENT BE ENTERED ACCORDINGLY.
March 26, 2014
s/David S. Doty
David S. Doty, Judge
United States District Court
Even if the unserved defendants did not suffer prejudice due
to their actual notice of the matter, “the lack of prejudice to a
defendant alone is insufficient to constitute excusable neglect.”
Metcalf, 2012 WL 2357573, at *4 (citation omitted).
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