Turner v. Galloway et al

Filing 33

ORDER denying 10 Motion to Dismiss; granting 14 Motion to Stay Proceedings; granting 20 Motion for Extension of Time to Serve Process as set out in the Order. Once service of process is accomplished, the parties should request a telephonic status conference with Magistrate Judge F. Keith Ball to determine the necessity of new deadlines. Signed by District Judge Daniel P. Jordan III on August 14, 2015. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
VICKEY TURNER

PLAINTIFF

V.

CIVIL ACTION NO. 3:14CV562 DPJ-FKB

DR. KEVIN GALLOWAY, D.O.

DEFENDANT
ORDER

This medical-malpractice action is before the Court on motion of Defendant Dr. Kevin
Galloway to dismiss Plaintiff Vickey Turner’s Amended Complaint [10] pursuant to Federal
Rule of Civil Procedure 12(b)(5) for insufficient service of process. Turner has responded in
opposition and filed a motion for an extension of time to effect service of process [20] pursuant
to Rule 4(m). Dr. Galloway opposes her request. The Court, having considered the memoranda
and submissions of the parties, finds that Dr. Galloway’s motion [10] should be denied and
Turner’s motion [20] should be granted.
I.

Facts and Procedural History
In June 2014, Plaintiff Vickey Turner filed an Amended Complaint in her state-court

medical-malpractice lawsuit, adding Dr. Kevin Galloway as a defendant. Pl.’s Mot. [21] at 1.
Turner asserts that Dr. Galloway negligently failed to remove all of her uterus during a total
hysterectomy in June 2003. Am. Compl. [1-1] at 4 5 (CMECF pagination). Turner sent Dr.
Galloway a copy of the Amended Complaint by certified mail but failed to attach a summons.
Galloway Aff. [10-1] at 1.
On July 21, 2014, Dr. Galloway, who is now a citizen of Illinois, removed the case to this
Court based on diversity of citizenship. Not. of Removal [1]. Thereafter, Dr. Galloway
answered the Amended Complaint, raising the service defects as defenses; produced his initial

disclosures; and participated in a case-management conference. Answer [3] at 4; Not. [7]; Case
Mgmt. Order [8]. Dr. Galloway now moves for dismissal of the Amended Complaint for
insufficient service of process based on the failure to include a summons. For her part, Turner
acknowledges that she failed to attach a summons but asks the Court to deny the motion to
dismiss and allow her an extension of 30 days to effect service of process under Rule 4(m).
These motions are complicated by two time-bar concerns. First, Turner admits that if the
Court dismisses her Amended Complaint without prejudice for failing to effect service of
process, such dismissal would functionally bar her claims because “Dr. Galloway will likely
argue the statute of limitations ran on June 25, 2014.” Pl.’s Mot. [21] at 2. Second, a dispute
exists as to whether the Amended Complaint was timely filed. Turner claims that she filed the
Amended Complaint on June 24, 2014, the date on which the state court granted her motion to
amend. Id. at 1. But Dr. Galloway insists that the Amended Complaint was not filed until June
26, 2014, the date on which Turner electronically filed her Amended Complaint in state court.
Def.’s Mot. [11] at 1. Thus, Dr. Galloway argues that Turner’s Amended Complaint was filed
one day too late and is already time barred, so allowing her an extension of time to serve process
would be futile.
With these interests in mind, the Court turns to Dr. Galloway’s motion to dismiss and
Turner’s motion for an extension of time to effect service.
II.

Applicable Standards
Federal Rule of Civil Procedure 12(b)(5) allows a defendant to file a motion to dismiss

for insufficient service of process. District courts deciding such motions “enjoy[] a broad
discretion.” George v. U.S. Dep’t of Labor, 788 F.2d 1115, 1116 (5th Cir. 1986) (per curiam);
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see also Holly v. Metro. Transit Auth., 213 F. App’x 343, 344 (5th Cir. 2007) (per curiam)
(noting that a dismissal under Rule 12(b)(5) is reviewed for abuse of discretion).
A request for additional time to effect service of process falls under Rule 4(m), which
provides:
If 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.
“[E]ven if good cause is lacking, the court has discretionary power to extend time for service,”
and “[s]uch relief may be warranted, for example, if the applicable statute of limitations would
bar the refiled action.” Newby v. Enron Corp., 284 F. App’x 146, 149 (5th Cir. 2008) (per
curiam) (internal quotation marks omitted); see Milan v. USAA Gen. Indem. Co., 546 F.3d 321,
325 26 (5th Cir. 2008).
III.

Analysis
Turner, by neglecting to include a summons, failed to strictly comply with the rules for

service of process. But federal courts generally prefer to resolve cases on their merits when
possible and not on procedural or technical grounds. See Krupski v. Costa Crociere S. p. A., 560
U.S. 538, 550 (2010) (considering Rule 15 relation-back principles); Ind. Bell Tel. Co., Inc. v.
Lovelady, No. SA-05-CA-285-RF, 2006 WL 508108, at *3 (W.D. Tex. Jan. 11, 2006) (denying
dismissal under Rule 4(m) and extending time to effect service of process). For the reasons that
follow, the Court, in its discretion, finds that dismissal under Rule 12(b)(5) is inappropriate.
Though Turner never perfected service on Dr. Galloway, she invokes Rule 4(m) and asks
the Court to decline dismissal while granting time to properly effect service of process. This
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raises the threshold question whether Rule 4(m) applies. Dr. Galloway contends that it does not
“[w]here a summons is fatally defective.” Def.’s Resp. [24] at 2.
In support of this argument, Dr. Galloway cites Ayres v. Jacobs & Crumplar, P.A., a case
from the Third Circuit Court of Appeals where the plaintiff, a licensed attorney, essentially
fabricated a summons. 99 F.3d 565, 569 (3d Cir. 1996). But Ayres is non-binding and easily
distinguishable. Here, Turner simply failed to attach a summons at all, which means Dr.
Galloway was never served. When a defendant is “not served” within 120 days, Rule 4(m)
applies. Fed. R. Civ. P. 4(m); see also Freightmaster USA, LLC v. Fedex, Inc., No. 14 3229
(KSH)(CLW), 2015 WL 1472665, at *2 (D.N.J. Mar. 31, 2015) (applying Rule 4(m) where
plaintiff failed to attach summons to complaint and granting extension because claim would
otherwise be time barred).
Applying Rule 4(m), the Court concludes that “good cause” is lacking but that a
discretionary extension should be granted. As previously noted, dismissal of Turner’s Complaint
without prejudice would function as a dismissal with prejudice because the action would be time
barred upon refiling. In such cases, the Fifth Circuit Court of Appeals considers the decision to
dismiss under Rule 4(m) “under the same heightened standard used to review a dismissal with
prejudice.” Milan, 546 F.3d at 326. Such dismissals with prejudice are viewed as an “‘extreme
sanction.’” Id. For instance, “where [the Fifth Circuit Court of Appeals] has affirmed dismissals
with prejudice, it has generally found at least one of three aggravating factors: (1) delay caused
by [the] plaintiff himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay
caused by intentional conduct.” Id. (alteration in original) (internal quotation omitted).

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These factors are not present here. First, the failure to include a summons is most
certainly the fault of Turner’s attorney. Second, Dr. Galloway was not prejudiced. He received a
copy of the Amended Complaint by certified mail shortly after its filing and in time to file a
timely notice of removal. He then filed an Answer, participated in a telephonic casemanagement conference, and filed his initial disclosures. Lastly, intentional misconduct has not
been demonstrated on this record.
On this final note, the Court considered Turner’s conduct after the deficiency was brought
to light. While Dr. Galloway did note in his Answer that “[s]ervice of process was insufficient,”
this often boiler-plate language failed to specify the problem. Answer [3] at 4. But less than two
weeks after Dr. Galloway filed his motion to dismiss, new counsel made an appearance for
Turner and noted that her initial attorney had significant medical issues. Shortly after that,
Turner sought and obtained an extension of time to respond to the motion to dismiss. See Pl.’s
Mot. [14]; see also Mar. 30, 2015 Text Order. She then filed a timely response and sought the
Rule 4(m) extension now before the Court. This conduct demonstrates a desire to promptly
correct the error once the contours of the defective process were set out

rather than

intentional delay. Cf. Sealed Appellant v. Sealed Appellee, 452 F.3d 415, 419 (5th Cir. 2006)
(affirming dismissal where the plaintiff missed the 120-day deadline for service by almost 600
days and concluding that such a delay can only be intentional).
The remaining question is whether an order granting leave to perfect service of process
would be futile because the claim was time barred when originally filed. But that issue is not
squarely before the Court at this time. The Court therefore concludes that the more appropriate
approach is to grant Turner an extension of time within which to properly serve Dr. Galloway
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and then rule on any statute-of-limitations issues Dr. Galloway may pursue in a subsequent
motion.
Considering the circumstances as a whole, the Court exercises its discretion to extend the
time for service under Rule 4(m). Turner’s request for additional time to effect service of
process is granted.
IV.

Conclusion
The Court has considered all arguments raised by the parties; those not specifically

addressed would not have changed the outcome.
Based on the foregoing, the Court finds that Dr. Galloway’s motion to dismiss [10]
should be denied and Turner’s motion for an extension of time to serve process [20] is granted.
Turner is granted an additional 30 days to serve process.
Finally, portions of Turner’s motion to stay the proceedings [14] remain pending. The
Court concludes that that motion should be granted to the extent that all deadlines are terminated.
Once service of process is accomplished, the parties should request a telephonic status
conference with Magistrate Judge F. Keith Ball to determine the necessity of new deadlines.
SO ORDERED AND ADJUDGED this the 14th day of August, 2015.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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