Fireman's Fund Insurance Company et al v. 4-H Construction Corporation

Filing 40

ORDER denying 16 Motion for Summary Judgment; denying 29 Motion to Strike ; Plaintiff shall effect proper service of process within 30 days from date of this Order. Signed by Honorable David C. Bramlette, III on 3/28/2014 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
FIREMAN’S FUND INSURANCE COMPANY and
RIVERSIDE CONSTRUCTION CO., INC.
VS.

PLAINTIFFS

CIVIL ACTION NO. 3:13-cv-872(DCB)(MTP)

4-H CONSTRUCTION CORPORATION

DEFENDANT

MEMORANDUM OPINION AND ORDER
This

cause

is

before

the

Court

on

the

defendant

4-H

Construction Corporation (“4-H”)’s motion for summary judgment
(docket entry 16), and on the plaintiffs Fireman’s Fund Insurance
Company (“Fireman’s Fund”) and Riverside Construction Co., Inc.
(“Riverside”)’s motion to strike defendant’s additional reply
memorandum (docket entry 29).

Having carefully considered the

motions and responses, the memoranda and the applicable law, and
being fully advised in the premises, the Court finds as follows:
The present suit is an admiralty and maritime claim within the
meaning of Rule 9(h) of the Federal Rules of Civil Procedure.
Plaintiff Fireman’s Fund, subrogee of plaintiff Riverside, seeks
compensation for damages to a barge owned by Riverside which were
allegedly caused by a barge owned by 4-H.
4-H’s motion for summary judgment alleges that this action is
“barred by the principles of judicial estoppel, laches, and/or
applicable statute of limitations for the State of Mississippi.”
Motion for Summary Judgment, p. 1.

4-H also contends that there

are no factual disputes and that the only issues are issues of law.

Id.

The defendant’s contention, that it is entitled to dismissal

of this action because the plaintiffs did not serve their summons
and complaint within 120 days after the filing of the complaint, is
actually an insufficient service of process defense which is
governed by Federal Rule of Civil Procedure 12(b)(5). See Davidson
v. Astrea Aviation Servs., Inc., 1997 WL 102486, at *2 (N.D. Tex.
March 5, 1997).
“[T]he full scope of Rule 4 [of the Federal Rules of Civil
Procedure] applies to admiralty proceedings in personam and extends
the personal jurisdiction of the court to any defendant properly
served under that rule.”

H&F Barge Co. v. Garber Bros., Inc., 65

F.R.D. 399, 404 (E.D. La. 1974).

Rule 4(e) provides that service

may be had by “following state law for serving a summons in an
action brought in courts of general jurisdiction in the state where
the

district

court

is

located

or

where

service

is

made.”

Fed.R.Civ.P. 4(e)(1). Rule 4(m) 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).
The defendant disputes the sufficiency of process in its

2

motion for summary judgment; however, the Court finds that the
argument has been waived. Rule 12(h) of the Federal Rules of Civil
Procedure provides that any defense listed in Rule 12(b)(2)-(5),
which includes insufficiency of process, is waived by “(A) omitting
it from a motion in the circumstances described in Rule 12(g)(2);
or (B) failing to either: (i) make it by motion under this rule; or
(ii) include it in a responsive pleading or in an amendment allowed
by

Rule

15(a)(1)

as

a

matter

of

course.”

In

other

words,

objections to the sufficiency of service of process are waived if
not raised in the answer or in a pre-answer motion.1

The defendant

has done neither. 4-H’s answer did not raise the defense of
insufficiency of service of process, and the defendant did not file
a pre-answer motion asserting the defense.

Although 4-H filed an

Amended Answer on May 10, 2013, the amendment mentions neither
insufficiency of service of process nor Rule 12(b)(5).
Although the Court is of the opinion that 4-H’s challenge to
the sufficiency of process has been waived, the Court nevertheless
exercises its discretion under Rule 4(m) to direct the plaintiffs
to effect proper service of process upon 4-H within thirty (30)

1

“The message conveyed by the recent version of Rule
12(h)(1) seems quite clear. It advises a litigant to exercise
great diligence in challenging personal jurisdiction, venue, or
service of process. If he wishes to raise any of these defenses
he must do so at the time he makes his first defensive move whether it be a Rule 12 motion or a responsive pleading.” Golden
v. Cox Furniture Mfg. Co., Inc., 683 F.2d 115, 118 (5th Cir.
1982)(quoting 5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1391 (1969)).
3

days from the date of this Memorandum Opinion and Order.

See

Vessel Leasing, LLC v. Barge ACL-01537 In Rem, 2007 WL 3343046, at
*3 (S.D. Miss. Nov. 7, 2007)(citing Thompson v. Brown, 91 F.3d 20,
21 (5th Cir. 1996)(“we agree with the majority of circuits that have
found that the plain language of rule 4(m) broadens a district
court’s discretion by allowing it to extend the time for service
even when plaintiff fails to show good cause.”)).
Relevant factors a court may consider in deciding whether to
exercise its discretion to extend time for service of process in
the absence of a finding of good cause include: whether the
“applicable statute of limitations would bar the refiled action, or
if the defendant is evading service or conceals a defect in
attempted service.”

Fed.R.Civ.P. 4(m) advisory committee’s note.

In addition, “courts within the Fifth Circuit have ventured outside
those suggestions found in the Advisory Committee Note and extended
time for service of process where it is judicially efficient to do
so, and/or where the defendant is not prejudiced as a result of a
plaintiff’s failure to effect service.”

Vessel Leasing, at *4

(citations omitted).
That 4-H has had notice of this suit, and has been fully aware
of the allegations against it, since October of 2012, and that it
has not been prejudiced in its ability to defend, also weigh in the
Court’s determination that this case should not be dismissed.

See

Vessel Leasing, at *4 (citing Scott v. Cypress Creek Emergency

4

Medical

Servs.,

2007

WL

2209268,

at

*3

(S.D.

Tex.

July

27,

2007)(refusing to dismiss a case under Rule 4(m), in part, because
defendant did not argue that late service imposed upon him any
prejudice or undue hardship) and Alden v. Allied Adult & Child
Clinic, LLC, 2002 WL 1684553, at *1 (E.D. La. July 22, 2002)(“In
considering whether to dismiss a defendant who was untimely served
but where it is not obvious there is good cause for the delay,
courts consider the reasons for the delay and whether the tardy
service has prejudiced the defendant.”)).
For the foregoing reasons, the Court finds that defendant 4H’s motion for summary judgment must be denied.

However, the

plaintiffs are nevertheless directed to effect proper service of
process upon 4-H within thirty (30) days from the date of entry of
this Memorandum Opinion and Order.
As for the plaintiffs’ motion to strike the defendant’s
additional reply memorandum, the Court finds that Counsel for 4-H
has

provided

Additional

sufficient

Reply,

and

explanation

the

motion

for

shall

the

lateness

therefore

be

of

his

denied.

Accordingly,
IT IS HEREBY ORDERED that defendant 4-H’s motion for summary
judgment (docket entry 16) is DENIED;
FURTHER ORDERED that plaintiffs Fireman’s Fund and Riverside’s
motion to strike defendant’s additional reply memorandum (docket
entry 29) is DENIED;
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FURTHER ORDERED that plaintiffs shall effect proper service of
process upon defendant 4-H Construction Corporation within thirty
(30) days from the date of this Memorandum Opinion and Order.
SO ORDERED, this the 28th day of March, 2014.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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