Stevens v. City of Vidalia et al
Filing
11
ORDER denying without prejudice 3 Motion to Dismiss for Lack of Personal Jurisdiction; denying without prejudice 5 Motion to Dismiss for Improper Venue; denying without prejudice 5 Motion to Change Venue; denying without prejudice 7 Motion to Dismiss for failure to state a claim; denying 9 Motion to Dismiss for Insufficient Service of Process; Plaintiff shall have 14 days from date of entry of this Order to serve process. Signed by Honorable David C. Bramlette, III on 3/17/2014 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
TIMOTHY L. STEVENS
PLAINTIFF
VS.
CIVIL ACTION NO. 5:13-cv-116(DCB)(MTP)
CITY OF VIDALIA, BY AND THROUGH
ITS AGENT FOR SERVICE OF PROCESS,
ITS MAYOR, HON. HIRAM COPELAND; AND
CHARLIE C. ROGERS, INDIVIDUALLY
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the Court on defendant City of Vidalia’s
Motion to Dismiss for Lack of Personal Jurisdiction (docket entry
3), the City of Vidalia’s Motion to Dismiss for Improper Venue or
in the Alternative to Transfer Pursuant to 28 U.S.C. § 1404(a)
(docket entry 5), the City of Vidalia’s Motion to Dismiss for
Failure to State a Claim Upon Which Relief Can Be Granted (docket
entry 7), and the City of Vidalia and defendant Charlie Rogers’
Motion to Dismiss for Insufficient Service of Process pursuant to
Fed.R.Civ.P. 12(b)(5)(docket entry 9). Having carefully considered
the motions, to which no responses have been filed, and being fully
advised in the premises, the Court finds as follows:
On July 2, 2013, the plaintiff Timothy L. Stevens (“Stevens”)
filed suit in Adams County Circuit Court against the City of
Vidalia, a municipality/political subdivision of the State of
Louisiana
(“City”
or
“City
of
Vidalia”),
and
Charlie
Rogers
(“Rogers”) for injuries the plaintiff claims he sustained in a July
2, 2010, car accident in Natchez, Mississippi.
In his Complaint,
Stevens, a Mississippi resident citizen, alleges that on July 2,
2010, he and Rogers, an employee of the City of Vidalia, were
involved in an automobile accident in Natchez, Mississippi.
The
plaintiff further asserts that Rogers was operating a vehicle
belonging to the City of Vidalia at the time of the accident.
On
July 31, 2013, the City of Vidalia and Rogers removed the case from
Adams County Circuit Court to this Court.
removal was made by Stevens.
No objection to the
The plaintiff has failed to serve
process on the defendants, both before and after defendants’
removal to this Court.
Mississippi Rule of Civil Procedure 4(h) provides:
If a service of the summons and complaint is not made
upon a defendant within 120 days after the filing of the
complaint and the party on whose behalf such service was
required cannot show good cause why such service was not
made within that period, the action shall be dismissed as
to that defendant without prejudice upon the court’s own
initiative with notice to such party or upon motion.
Miss.R.Civ.P. 4(h)(emphasis added).
Federal Rule of Civil Procedure 4(m) provides:
If service of the summons and complaint is not made upon
a defendant within 120 days after the filing of the
complaint, the court, upon motion or on its own
initiative after notice to the plaintiff, shall dismiss
the action without prejudice as to that defendant or
direct that service be effected within a specified time;
provided that if the plaintiff shows good cause for the
failure, the court shall extend the time for service for
an appropriate period. ....
Fed.R.Civ.P. 4(m)(emphasis added).
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Since the plaintiff’s 120 days to serve process had not
expired before removal to federal court, Federal Rule 4(m) applies.
See Robinson v. Roxy Investments, L.P., 2008 WL 3165834, at *1
(S.D. Miss. Aug. 1, 2008)(citing Hanna v. Plummer, 380 U.S. 460,
473-74
(1965),
and
Fed.R.Civ.P.
81
(providing
that
“[t]hese
[federal] rules apply to civil actions removed to the United States
District Courts....”)).
This Court therefore may extend the plaintiff’s time for
service of process to a date which would permit the plaintiff to
cure any alleged insufficiencies in service of process on either
one or both defendants in state court.
at *1.
Robinson, 2008 WL 3165834,
See also Henderson v. U.S., 517 U.S. 654 (1996); 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.”);
28 U.S.C. § 1448 (“In all cases removed from any State court to any
district court of the United States in which any one or more of the
defendants has not been served with process or in which the service
has not been perfected prior to removal, or in which process served
proves to be defective, such process or service may be completed or
new process issued in the same manner as in cases originally filed
in such district court.”).
Stevens has not responded to the defendants’ motion and has
3
not shown “good cause.” However, even if “the plaintiff lacks good
cause, the court has discretion to extend the time for service.”
Thrasher v. City of Amarillo, 709 F.3d 509, 511 (5th Cir. 2013).
Such relief may be warranted when, for example, the “applicable
statute of limitations would bar the refiled action, or if the
defendant is evading service or conceals a defect in attempted
service.”
In
Fed.R.Civ.P. 4(m) advisory committee notes (1993).
this
case,
an
order
of
dismissal
would
amount
to
a
dismissal with prejudice because the applicable three-year statute
of limitations has run.
Dismissal with prejudice “is an extreme
sanction that deprives a litigant of the opportunity to pursue his
claim.” Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 247
(5th Cir. 1980). Consequently, where dismissals with prejudice have
been affirmed, the reviewing court has generally found at least one
of three aggravating factors: (1) delay caused by [the] plaintiff
himself
and
not
his
attorney;
(2)
actual
prejudice
defendant; or (3) delay caused by intentional conduct.
to
the
See Millan
v. USAA Gen. Indem. Co., 546 F.3d 321, 325-26 (5th Cir. 2008).
Despite the plaintiff’s failure to show “good cause,” the
Court finds that it may exercise its discretion to extend the time
for service.
suit.
The defendants have obviously been informed of this
Furthermore, they do not allege actual prejudice, nor
intentional delay by the plaintiff himself, nor other intentional
conduct.
The
defendants’
motion
4
shall
therefore
be
denied;
however, should the plaintiff fail to serve process within the time
allotted by the Court, this cause will be subject to dismissal
under Rule 4(m).
Therefore, the motion shall be denied without
prejudice.
As for the remaining motions, these were made by defendant
City of Vidalia in order to “specifically reserve[], assert[] and
invoke[]” certain defenses available to it as set forth in Federal
Rule of Civil Procedure 12(b).
reserved these defenses.
The Court finds that the City has
The Court further finds, however, that
the present motions should be denied as premature, since they will
become moot if the plaintiff fails to serve process.
If the City
is properly served with process, it may renew its motions.
Accordingly,
IT IS HEREBY ORDERED that the City of Vidalia and defendant
Charlie Rogers’ Motion to Dismiss for Insufficient Service of
Process (docket entry 9) is DENIED WITHOUT PREJUDICE;
FURTHER ORDERED that the plaintiff shall have fourteen (14)
days from the date of entry of this Memorandum Opinion and Order to
serve process.
Failure to do so could result in dismissal of this
action;
FURTHER ORDERED that defendant City of Vidalia’s Motion to
Dismiss for Lack of Personal Jurisdiction (docket entry 3) is
DENIED WITHOUT PREJUDICE;
FURTHER ORDERED that defendant City of Vidalia’s Motion to
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Dismiss for Improper Venue or in the Alternative to Transfer
Pursuant to 28 U.S.C. § 1404(a) (docket entry 5) is DENIED WITHOUT
PREJUDICE;
FURTHER ORDERED that defendant City of Vidalia’s Motion to
Dismiss for Failure to State a Claim Upon Which Relief Can Be
Granted (docket entry 7) is DENIED WITHOUT PREJUDICE.
SO ORDERED, this the 17th day of March, 2014.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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