Skinner et al v. Bordages et al
Filing
101
MEMORANDUM OPINION AND ORDER Dismissing Defendants Terry Davis, Burnell Dedeaux, Tom Deichmann, Mary Foretich, John Hawkins, Robert Hillier, Brian MacCarthy, John B. Metcalf, Charles Brandon Moore, Carlo Robotti, Craig Shows, Tom Wheeler, and Karl Winter for Failure to Serve Process. Signed by District Judge Halil S. Ozerden on December 22, 2014. (NM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JESSE M. SKINNER and MANUEL
E. SKINNER JR.
v.
JOHN BORDAGES JR., CRAIG
SHOWS, JOHN HAWKINS, MARY
FORETICH, TERRY DAVIS, KEITH
DAVIS, CARLO ROBOTTI, BRIAN
MACCARTHY, TOM DEICHMANN,
BURNELL DEDEAUX, LUIS
HAWKINS, CHARLES BRANDON
MOORE, KARL WINTER, GPCH-GP,
INC., JOHN B. METCALF, ROBERT
HILLIER, TOM WHEELER, ROY
HUGH FLEMING, and JOHN/JANE
DOES 1-4
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PLAINTIFFS
CIVIL NO.: 1:13cv314-HSO-RHW
DEFENDANTS
MEMORANDUM OPINION AND ORDER DISMISSING DEFENDANTS
TERRY DAVIS, BURNELL DEDEAUX, TOM DEICHMANN, MARY
FORETICH, JOHN HAWKINS, ROBERT HILLIER, BRIAN MACCARTHY,
JOHN B. METCALF, CHARLES BRANDON MOORE, CARLO ROBOTTI,
CRAIG SHOWS, TOM WHEELER, AND KARL WINTER
FOR FAILURE TO SERVE PROCESS
This matter is before the Court sua sponte due to Plaintiffs Jesse M. Skinner
and Manuel E. Skinner, Jr.’s (“Plaintiffs”) failure to timely serve process on
Defendants Terry Davis, Burnell Dedeaux, Tom Deichmann, Mary Foretich, John
Hawkins, Robert Hillier, Brian MacCarthy, John B. Metcalf, Charles Brandon
Moore, Carlo Robotti, Craig Shows, Tom Wheeler, and Karl Winter. On September
16, 2014, the Court entered an Order to Show Cause affording Plaintiffs Jesse M.
Skinner and Manuel E. Skinner, Jr., the opportunity to show good cause as to why
these thirteen Defendants had yet to be served process, over thirteen months after
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the Complaint was filed. On October 3, 2014, Plaintiffs responded to the Court’s
Order [79] by filing a document styled “Motion to Show Cause Sworn Under Penalty
of Perjury” [85]. Having considered Plaintiffs’ Response [85] to the Court’s Order
[79], the record, and relevant legal authorities, the Court is of the opinion that
Plaintiffs have not shown good cause for their failure to serve process as to
Defendants Terry Davis, Burnell Dedeaux, Tom Deichmann, Mary Foretich, John
Hawkins, Robert Hillier, Brian MacCarthy, John B. Metcalf, Charles Brandon
Moore, Carlo Robotti, Craig Shows, Tom Wheeler, and Karl Winter, and these
Defendants should be dismissed.
I. BACKGROUND
Plaintiffs Jesse M. Skinner and Manuel E. Skinner, Jr., filed the Complaint
[1] in this case on August 1, 2013, naming John Bordages, Jr., Craig Shows, John
Hawkins, Mary Foretich, Terry Davis, Keith Davis, Carlo Robotti, Brian
MacCarthy, Tom Deichmann, Burnell Dedeaux, Luis Hawkins, Charles Brandon
Moore, Karl Winter, GPCH-GP, Inc., John B. Metcalf, Robert Hillier, Tom Wheeler,
and Roy Hugh Fleming as Defendants. On September 9, 2013, Summonses [5] were
issued, in pertinent part, for Terry Davis, Burnell Dedeaux, Tom Deichmann, Mary
Foretich, John Hawkins, Robert Hillier, Brian MacCarthy, John B. Metcalf, Charles
Brandon Moore, Carlo Robotti, Craig Shows, Tom Wheeler, and Karl Winter
(collectively “the Unserved Defendants”).1 The 120 day time period for effecting
While Summons addressed to Defendant Keith Davis was issued on September 9, 2013, and
was returned as “executed” on November 8, 2013 [10], Keith Davis filed a Motion to Dismiss for
Insufficient Service of Process [54], and the Court granted that Motion on September 9, 2014 [77].
On September 19, 2013, Summons [6] was issued for Defendant GPCH-GP, Inc., and although
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service of process pursuant to Rule 4(m) of the Federal Rules of Civil Procedure was
due to expire on November 29, 2013, but Plaintiffs obtained an extension of this
deadline until January 24, 2014. Order 2 [9]. Notwithstanding the extension of
time, Plaintiffs did not effect service on the Unserved Defendants.
On September 16, 2014, the Court entered an Order to Show Cause Why [the
Unserved Defendants] Should Not Be Dismissed for Plaintiffs’ Failure to Timely
Serve Process [79]. Plaintiffs responded to the Court’s Order [79] on October 3,
2014, explaining that they have sought the services of three process servers all to no
avail. Mot. to Show Cause Sworn Under Penalty of Perjury 1-3 [85]. Plaintiffs then
renewed their request for leave to effect service by publication. Id. at 3-7.
II. DISCUSSION
A.
Legal Standard
Rule 4(m) of the Federal Rules of Civil Procedure, provides that
[i]f a defendant is not served within 120 days after the complaint is
filed, the court — on motion or on its own after notice to the plaintiff —
must dismiss the action without prejudice against that defendant or
order that service be made within a specified time. But if the plaintiff
shows good cause for the failure, the court must extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m). To establish “good cause,” Plaintiffs “must show more than
inadvertence, mistake, or ignorance of the rules.” System Signs Supplies v. United
States Dept. of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990).
GPCH-GP, Inc. was served December 9, 2013 [19], Plaintiffs’ claims against GPCH-GP, Inc., were
also dismissed with prejudice [76] on September 9, 2014.
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B.
Analysis
1.
Service by Publication
As an initial matter, to the extent Plaintiffs’ Response to the Order [79] can
be construed as a request that the Court once again reconsider the Magistrate
Judge’s earlier decision to deny Plaintiffs’ request for service by publication, the
Court finds that Plaintiffs’ position lacks merit for the same reasons previously
found by the Court in overruling Plaintiff’s Objection to the Magistrate Judge’s
denial of Plaintiff’s request for leave to serve process by publication. See Order
Denying Pls.’ Mot. for Review of Magistrate Judge’s Order 3-4 [78]. Rule 4(e)(1)
authorizes service by publication pursuant to Rule 4(c)(4) of the Mississippi Rules of
Civil Procedure, which permits service by publication only after a “diligent inquiry”
reveals an inability to serve a defendant personally. “There is no bright line rule as
to how many efforts must be made by a plaintiff to locate a named defendant to
satisfy the requirement of diligent inquiry[,]” but the quantity and quality of a
plaintiff’s efforts to serve a defendant personally must be taken into consideration.
Page v. Crawford, 883 So. 2d 609, 611-12 (Miss. Ct. App. 2004), overruled on other
grounds by E. Mississippi State Hosp. v. Adams, 947 So. 2d 887, 891 (Miss. 2007).
With respect to the quantity of Plaintiffs’ efforts to serve the Unserved
Defendants, Plaintiffs explain that they retained three process servers to attempt to
serve process on Defendants at various times since filing the Complaint. Mot. to
Show Cause Sworn Under Penalty of Perjury 1-2 [85]. A careful reading of
Plaintiffs’ Response [85], however, indicates that Plaintiffs do not claim that they
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have had each of the three process servers make an attempt to serve each of the
Unserved Defendants. The record reveals that Summonses [5] were only requested
and issued once for each Unserved Defendant without any additional requests for
alias summonses after the initial lack of success in effecting service. As for the
quality of the efforts made by Plaintiffs’ process servers, there is insufficient
evidence in the record regarding the quality of the efforts made. See Summons
Returned Unexecuted [26]. The Summonses returned unexecuted [26] include
fragments of information which are at best vague and are unhelpful to evaluating
the quality of Plaintiffs’ efforts to serve the Unserved Defendants. The unexecuted
Summonses [26] shed little light on the number of times the process servers
attempted to serve each Unserved Defendant before returning the Summonses, the
efforts the process servers undertook to locate each Unserved Defendant, or the
degree to which each Unserved Defendant may have been purposefully avoiding
service of process. Therefore, consistent with its previous Order [78], the Court
finds that Plaintiffs have not established sufficient grounds to justify service by
publication.
2.
Plaintiffs’ Response to the Court’s Show Cause Order
As of the date of this Order, Plaintiffs have had five-hundred and five (505)
days to effect service on the Unserved Defendants. During that time, however,
Plaintiffs have only requested the issuance of Summonses one time, Plaintiffs’
process servers have returned as unexecuted the Summonses pertaining to each of
the Unserved Defendants, and Plaintiffs have repeatedly and unsuccessfully sought
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leave to effect service by publication. The record before the Court does not include
facts which demonstrate “more than inadvertence, mistake, or ignorance of the
rules[]” as is required to establish “good cause” for extending the time for serving
process. System Signs, 903 F.2d at 1013. The Court consequently finds that
Plaintiffs have not shown sufficient cause in response to the Court’s Order [79], and
the Unserved Defendants should be dismissed.
3.
Statute of Limitations
The Court further finds that the reasoning underlying the Court’s finding
that Plaintiffs’ conspiracy claim and claim under the Racketeer Influenced Corrupt
Organizations Act, 18 U.S.C. §§ 1961 to -1968 (“RICO”), against Defendant GPCHGP, Inc., are barred by the applicable statutes of limitations also applies with equal
force to Plaintiff’s conspiracy and RICO claims against the Unserved Defendants.
See Mem. Op. and Order 9-11, 14-16 [76]. Plaintiffs filed the Complaint [1] on
August 1, 2013. The three year statute of limitations applicable to conspiracy
claims began to run by June 9, 2003, and thus the conspiracy claim is time barred.
See Am. Bankers’ Ins. Co. of Fla. v. Wells, 819 So. 2d 1196, 1200 (Miss. 2001) (citing
Miss. Code Ann. § 15-1-49). In similar fashion, Plaintiffs were or should have been
aware of any potential RICO claim against Defendants by October 27, 2006, at the
latest, and thus the four year statute if limitations applicable to RICO claims
expired prior to Plaintiffs filing the Complaint. Accordingly, even if Plaintiffs were
able to properly serve the Unserved Defendants, Plaintiffs’ conspiracy and RICO
claims are barred by the statutes of limitation applicable to those claims.
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III. CONCLUSION
For the foregoing reasons, Plaintiffs have not demonstrated good cause
sufficient to avoid dismissal of the Unserved Defendants for failure to serve process.
IT IS, THEREFORE, ORDERED AND ADJUDGED that Defendants
Terry Davis, Burnell Dedeaux, Tom Deichmann, Mary Foretich, John Hawkins,
Robert Hillier, Brian MacCarthy, John B. Metcalf, Charles Brandon Moore, Carlo
Robotti, Craig Shows, Tom Wheeler, and Karl Winter are DISMISSED from this
civil action.
SO ORDERED AND ADJUDGED, this the 22nd day of December, 2014.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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