Huskey v. Ionex Communications, Inc. et al

Filing 37

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that the Clerk of the Court shall change the caption on the docket to reflect the caption in Plaintiffs First Amended Class Action Complaint (ECF No. 25 ). IT IS FURTHER ORDERED that this action is DISMI SSED without prejudice as to R. Kirby Godsey, Tony Tomae, Jim O'Brien, Chris Bunce, Scott Murphy, Michelle Ansley, Paul Masters, and 10 Jane and/or John Does for failure to execute timely service in compliance with Rule 4(m) of the Federal Rul es of Civil Procedure. IT IS FINALLY ORDERED that Defendants' Motion to Dismiss the First Amended Class Action Petition filed in state court and removed to this Court (ECF No. 19 ) is DENIED as MOOT. (Chris Bunce, R. Kirby Godsey, Paul Mas ters (in their individual capacities and in their representative capacities as menbers of Birch Communications "Executive Leadership Team"), Scott Murphy, Jim O'Brien, Tony Tomae, 10 JANE and/or JOHN DOES, (in their individual and representative capacities on behalf of, BIRCH COMMUNICATIONS, INC.) and Michelle Ansley terminated.). Signed by District Judge Ronnie L. White on 5/17/2017. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RICHARD W. HUSKEY,
Plaintiff,
v.
BIRCH COMMUNICATIONS, INC., et al. ,
Defendants.

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No. 4:16CV1724 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs Response to Orders to Show Cause (ECF
No. 33). Defendant has filed a reply, asserting that the Court should dismiss the case for noncompliance with Rule 4(m) of the Federal Rules of Civil Procedure.
The Court notes that Plaintiff filed a First Amended Class Action Complaint on
November 21, 2016, naming as Defendants Birch Communications, Inc., R. Kirby Godsey, Tony
Tomae, Jim O'Brien, Chris Bunce, Scott Murphy, Michelle Ansley, Paul Masters, and 10 Jane
and/or John Does. On March 28 and March 29, 2017, the Court issued Orders to show cause
why the case should not be dismissed for failure to execute timely service in compliance with
Rule 4(m). (ECF Nos. 31 , 32) On April 13, 2017, Plaintiff filed a response, addressing his
failure to serve Defendant Birch Communications, Inc. , but failing to address lack of service
with respect to the Defendants named in their individual capacities or the 10 Jane and/or John
Does.
Under Rule 4(m) of the Federal Rules of Civil Procedure:

If a defendant is not served within 90 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). "A showing of good cause requires at least 'excusable neglect' - good
faith and some reasonable basis for noncompliance with the rules." Adams v. AlliedSignal Gen.

Aviation Avionics, 74 F.3d 882, 887 (8th Cir. 1996). Further, " [w]hen counsel has ample notice
of a defect in service, does not attempt an obvious correction, and chooses to defend the validity
of the service attempted, there is not good cause for the resulting delay if that method of service
fails. " Id.
As stated in the Orders to show cause filed nearly two months ago, over 90 days have
passed since the case was removed to federal court and since the filing of the First Amended
Complaint. Plaintiffs response to the show cause order is silent as to the Defendants named in
their individual capacities and the Jane and/or John Does. Even if Plaintiffs response refers to
all named Defendants, Plaintiffs argument that he properly effectuated service by virtue of

removal to this Court and use of the Court' s electronic filing system is illogical and inconsistent
with the Federal Rules of Civil Procedure and the local rules ofthis Court. Rule 4 requires the
service of summons, along with a copy of the complaint, on "each defendant to be served" within
the time allowed under Rule 4(m). Fed. R. Civ. P. 4(a)-(c). Further, the Local Rules of the
United States District Court for the Eastern District of Missouri provide, "[ s]ervice pursuant to
Fed. R. Civ. P. 4 may not be effected by electronic means." E.D. Mo. L.R. 2.12.
Nothing in the record demonstrates even an attempt to obtain summonses and timely
serve the Defendants named in their individual capacities or the 10 Jane and/or John Does or
otherwise comply with Rule 4. The Court finds that Plaintiff has not shown good faith and
some reasonable basis for noncompliance with Rule 4 pertaining to service. Instead, Plaintiff has
chosen to defend the validity of service through the ECF system, which fails to constitute good
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cause. Adams, 74 F.3d at 887. Thus, in accordance with the mandate in Rule 4(m), the Court
must dismiss the action without prejudice as to those Defendants.
The Court notes, however, that the caption on the docket does not accurately reflect the
parties in this case as specified in the caption of Plaintiffs First Amended Class Action
Complaint. Therefore, the Court will order the Clerk of the Court to make the appropriate
changes. The Court will address Birch Telecom of Missouri, Inc.' s Motion to Dismiss the First
Amended Class Action Complaint (ECF No. 27) and Plaintiffs Response to Order to Show
Cause with respect to Birch Communications, Inc. in a separate Order.
Accordingly,

IT IS HEREBY ORDERED that the Clerk of the Court shall change the caption on the
docket to reflect the caption in Plaintiffs First Amended Class Action Complaint (ECF No . 25).

IT IS FURTHER ORDERED that this action is DISMISSED without prejudice as to
R. Kirby Godsey, Tony Tomae, Jim O' Brien, Chris Bunce, Scott Murphy, Michelle Ansley, Paul
Masters, and 10 Jane and/or John Does for failure to execute timely service in compliance with
Rule 4(m) of the Federal Rules of Civil Procedure.

IT IS FINALLY ORDERED that Defendants' Motion to Dismiss the First Amended
Class Action Petition filed in state court and removed to this Court (ECF No. 19) is DENIED as

MOOT.
Dated this 17th day of May, 2017.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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