Heyne v. Mitsubishi Motors North America et al

Filing 21

MEMORANDUM AND ORDER - The Magistrate Judge's Findings and Recommendation (filing 19 ) are adopted in part. The plaintiff's objection (filing 20 ) is overruled. The plaintiff's claims against two unknown insurance companies are dismissed without prejudice pursuant to Rules 4(m) and 41(b). The Clerk of the Court is directed to sign filings 6 and 7, complete forms USM-285 and USM-94 and any other required forms, and forward them to the United States Marshals Service along with copies of the plaintiff's amended complaint (filings 9 and 9-1). The Marshals Service shall service the summonses and amended complaint without payment of costs or fees. The Clerk of the Court shall set a case management deadline in this case for October 21, 2014, with the following text: "Check completion of service of summons." Ordered by Judge John M. Gerrard. (Copy e-mailed to pro se party; Copy to USM with Documents as ordered)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TODD M. HEYNE,
Plaintiff,

8:12-CV-421

vs.
MEMORANDUM AND ORDER
MITSUBISHI MOTORS NORTH
AMERICA, INC., et al.,
Defendants.
This matter is before the Court on the Magistrate Judge's Findings and
Recommendation (filing 19) recommending that this case be dismissed, and
the plaintiff's objection (filing 20) to those findings and recommendation. The
Court will adopt the Magistrate Judge's findings and recommendation in part
and dismiss the plaintiff's claims as to two defendants, but direct the Clerk of
the Court to complete the necessary service forms as to the other two
defendants, and provide the necessary documents to the United States
Marshals for service.
PROCEDURAL HISTORY
The plaintiff's complaint was filed on December 10, 2012, against four
defendants: Mitsubishi Motors North America, Inc., Mitsubishi Motors Corp.,
and two unidentified insurance companies. Filing 1 at 1. Generally described,
the plaintiff alleged that he was injured because the airbag in his 2002
Mitsubishi Lancer failed to deploy in an automobile accident, and he pointed
to a subsequent government recall of 2008-09 Lancer models because their
airbag sensors were insufficiently corrosion-resistant.1 Filing 1 at 2-3. On the
same day, he filed a motion for leave to proceed in forma pauperis. Filing 2.
On January 14, 2013, the Court provisionally granted leave to proceed in
forma pauperis. Filing 5. On March 25, the plaintiff asked for summons to be
issued. Filing 6; filing 7. But on March 28, the Court ordered the plaintiff to
file an amended complaint, finding that his initial complaint failed to comply
To be clear: the plaintiff's model vehicle was not the subject of a recall relating to airbag
deployment, and the plaintiff does not allege that it was. See 2002 Mitsubishi Lancer,
National Highway Traffic Safety Association, http://www-odi.nhtsa.dot.gov/owners/
SearchResultsByUrlCode.action?referenceSearch.requestId=30381&referenceSearch.urlCo
de=MI721GLKB74JBZH (last visited July 17, 2014).
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with Fed. R. Civ. P. 8 and that it was questionable whether the amount-incontroversy requirement for diversity jurisdiction was satisfied. Filing 8.
On April 29, 2013, the plaintiff timely filed an amended complaint and
a "memorandum" setting forth facts in support of the amount in controversy.
Filing 9; filing 9-1. On August 19, the Court entered a memorandum and
order finding that the plaintiff had complied with its previous order and that
the plaintiff's claims could proceed to service. Filing 11. The Court stated:
To obtain service of process on Defendants, Plaintiff must
complete and return the summons forms that the Clerk of the
court will provide. The Clerk of the court shall send FOUR
summons forms and FOUR USM-285 forms to Plaintiff, together
with a copy of this Memorandum and Order. Plaintiff shall, as
soon as possible, complete the forms and send the completed
forms back to the Clerk of the court. In the absence of the forms,
service of process cannot occur.
Filing 11 at 1. On its own motion, the Court extended the time for perfecting
service on the defendants until 120 days from the date of that order. Filing 11
at 2; see Fed. R. Civ. P. 4(m). But the plaintiff was "notified that failure to
obtain service of process on a defendant within 120 days of the date of this
order may result in dismissal of this matter without further notice as to such
defendant." Filing 11 at 2. The Court's docket entry reflects that a copy of the
order was e-mailed to the plaintiff and "summonses and forms sent via U.S.
Mail." Filing 11.
The plaintiff did not meet that extended deadline. In fact, nothing of
substance appears on the docket for several months. So, on January 8, 2014,
the Magistrate Judge sua sponte gave the plaintiff another 30 days to
complete service, again cautioning him that he faced the dismissal of his case
for want of prosecution. Filing 13.
On February 7, 2014, the plaintiff moved for another extension of time
to serve summons. Filing 14. He said that he had not received the forms that
were to have been sent to him the previous August. Filing 14. And he claimed
that he had been unable to log in (presumably to CM/ECF) to file a request
for an extension or notify the Court that he had not received the forms. Filing
14. The Magistrate Judge granted the plaintiff's motion, extending the
service deadline for another 45 days. Filing 16. The Clerk of the Court was
also directed to send a copy of the order to the plaintiff, along with another
four summons forms and four USM-285 forms. Filing 16. And the plaintiff
was again ordered to, "as soon as possible, complete the USM-285 forms and
the summons forms and return them to the Clerk of the court." Filing 16. The

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Court's docket entry reflects that the order was "mailed to pro se party with 4
summons and 285 forms." Filing 16.
The plaintiff did not complete and return the forms, and he did not
otherwise serve the defendants. So, on May 14, 2014, the Magistrate Judge
ordered the plaintiff to show cause why the case should not be dismissed for
failure to serve process or for want of prosecution. Filing 17. The plaintiff
filed a response that was (and is) somewhat unclear. Filing 18. The plaintiff
offered a detailed discussion of medical and financial issues that he said were
affecting him, but did not explain how those issues had prevented him from
completing service or complying with the Magistrate Judge's previous orders.
Filing 18.
The Magistrate Judge, noting that the plaintiff had not explained his
failure to complete and return the USM-285 and summons forms,
recommended that the Court dismiss the plaintiff's complaint for want of
prosecution. Filing 19. The plaintiff has filed a timely objection to the
Magistrate Judge's findings and recommendation. Filing 20.
DISCUSSION
The Magistrate Judge's findings and recommendation implicate two
separate bases for dismissal: dismissal pursuant to Fed. R. Civ. P. 4(m) for
failure to serve, and dismissal pursuant to Fed. R. Civ. P. 41(b) for failure to
prosecute and to comply with a court order. Rule 4(m) 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.
Thus, under Rule 4(m), there is a two-part inquiry. First, if the Court
concludes there is good cause for plaintiff's failure to serve within 120 days, it
shall extend the time for service. Kurka v. Iowa Cty., 628 F.3d 953, 957 (8th
Cir. 2010). Second, even if the plaintiff fails to show good cause, the Court
still may extend the time for service rather than dismiss the case, if the
plaintiff establishes excusable neglect. Id.
First, the Court must determine whether good cause exists for the
plaintiff's failure to serve the defendant within the 120-day deadline (not
whether good cause exists for an extension). Id. at 958. In determining
whether good cause exists, the Court must focus primarily on the plaintiff's
reasons for not complying with the time limit in the first place. Id. Rule 4(m)

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does not define good cause, and courts have not given conclusive meaning to
the phrase. Kurka, 628 F.3d at 957. It does require, at least, good faith and
some reasonable basis for noncompliance with the rules. Id. Among other
things, good cause is likely (but not always) to be found when the plaintiff is
proceeding pro se or in forma pauperis. Id. At its core, however, the standard
of good cause is necessarily amorphous: whether or not it has been satisfied is
largely dependent upon the facts of each individual case. Id.
In this case, however, there is almost nothing in the record to show why
the plaintiff has not served the defendants. Nothing in the plaintiff's
response to the Magistrate Judge's show cause order, or his objection to the
Magistrate Judge's findings and recommendation, explain why he was unable
to complete and return the forms for service that were provided to him. The
plaintiff seems preoccupied with explaining his injuries as they relate to the
amount in controversy, even though that issue was resolved in his favor last
August. See filing 11. The plaintiff was asked to explain his repeated failure
to fill out a handful of forms, and he has not done so.
The closest thing to such an explanation in the record accompanied the
plaintiff's extension request back in February, in which he claimed he had
not received the forms that were to have been sent to him nearly 6 months
earlier. Filing 14. But the plaintiff had already missed one deadline and done
nothing to pursue his case. It would have been reasonable, for instance, for
the plaintiff to contact the Court about his purported failure to receive the
forms or inability to log in to CM/ECF. Even a simple Google search for "USM
285" or "summons form" would have made the forms immediately available.
But the plaintiff did none of that. Compare, e.g., Lujano v. Omaha Pub.
Power Dist., 30 F.3d 1032, 1034-35 (8th Cir. 1994).
Simply put, the plaintiff's explanation last February for why he had not
served the defendants or returned service forms to the Court was not very
persuasive then—and it carries no weight now. The Court also notes that
even though the plaintiff obviously knew how to request an extension, he has
not done so with respect to the deadline he has most recently missed. If the
plaintiff had a good reason for missing that deadline, he could easily have
asked for more time, but he did not. See Nafziger v. McDermott Int'l, Inc., 467
F.3d 514, 521-22 (6th Cir. 2006).
The plaintiff points out that one of the defendants is a foreign
corporation, and correctly notes that the 120-day deadline of Rule 4(m) does
not apply to service in a foreign country. But because district courts need to
be able to control their dockets, Rule 4(f) authorizes a without-prejudice
dismissal when the Court determines in its discretion that the plaintiff has
not demonstrated reasonable diligence in attempting service. Lozano v.
Bosdet, 693 F.3d 485, 489 (5th Cir. 2012); Feliz v. MacNeill, 493 Fed. Appx.
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128, 131 (1st Cir. 2012). And a plaintiff can only invoke the international
service exception to Rule 4(m) if he or she attempted to serve the defendant
pursuant to the rules governing service in a foreign country as set forth in
Rule 4(f). See, Feliz, 493 Fed. Appx. at 132; Montalbano v. Easco Hand Tools,
Inc., 766 F.2d 737, 740 (2d Cir. 1985); Goodstein v. Bombardier Capital, Inc.,
167 F.R.D. 662, 665-66 (D. Vt. 1996). There is nothing to suggest that any
such international service was attempted here.
Because the plaintiff's arguments are without merit, his objection
(filing 20) to the Magistrate Judge's findings and recommendation will be
overruled. But authority not cited by the plaintiff leads the Court to conclude,
on its own motion, that good cause for noncompliance with Rule 4(m) exists
as to the two Mitsubishi defendants. Because the plaintiff is proceeding in
forma pauperis, he was entitled to rely on service by the United States
Marshals Service. Wright v. First Student, Inc., 710 F.3d 782, 783 (8th Cir.
2013). And pursuant to 28 U.S.C. § 1915(d), in an in forma pauperis case,
"[t]he officers of the court shall issue and serve all process, and perform all
duties in such cases." See Moore v. Jackson, 123 F.3d 1082, 1085 (8th Cir.
1997). Accordingly, the Eighth Circuit has held that it is error for the Court
to require a plaintiff to fill out service of process forms; the officers of the
Court are required to complete those forms so long as the plaintiff has
furnished "the information necessary to identify the defendant." Moore, 123
F.3d at 1084-85; see Wright, 710 F.3d at 783-84.2 And so long as the plaintiff
has provided the necessary information, the Marshals' failure to effect service
is automatically good cause within the meaning of Rule 4(m) for failing to
serve process. Moore, 123 F.3d at 1085-86; Gonzalez v. L'Oreal USA, Inc., 489
F. Supp. 2d 181, 184 (N.D.N.Y. 2007).
Obviously, the plaintiff retains the obligation to provide the process
servers with the necessary information and generally make diligent efforts.
Gonzalez, 489 F. Supp. 2d at 184. But here, the plaintiff did provide names
and business addresses for the two Mitsubishi defendants, on the summons
forms he completed before initial review.3 See, filing 6; filing 7. Accordingly,
The Court is aware of authority suggesting that pursuant to Rule 4(c)(3), an in forma
pauperis plaintiff must request service of the summons and complaint by court officers
before those officers will be responsible for effective such service. Boudette v. Barnette, 923
F.2d 754, 757 (9th Cir. 1990). While the Ninth Circuit's reasoning is persuasive, and
supported by the language of Rule 4(c)(3); the Court cannot reconcile it with the Eighth
Circuit's clear holding in Moore. See also Lujano, 30 F.3d at 1035 n.4.
2

The information provided by the plaintiff seems to be sufficient to at least attempt service.
The Court is aware that a post office box may not be sufficient for service in California, see
Cal. Civ. Proc. Code § 415.20(a), but it appears that the address provided is for the
defendant's actual corporate offices, not a post office. Beyond that, the Court obviously
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the Clerk of the Court will be directed to sign those two forms and forward
them to the Marshal, along with copies of the plaintiff's amended complaint,
and to complete and forward any other necessary forms, including the
Marshals' forms USM-285 and USM-94.
But it is equally clear that the plaintiff has failed to provide the
necessary information to identify two "unknown" insurance companies. See
filing 9 at 1-2. The plaintiff has, therefore, failed to show good cause for his
failure to serve those defendants. See Gonzalez, 489 F. Supp. 2d at 184.
Nor does excusable neglect warrant extending the service deadline as
to the unidentified defendants. Such relief is warranted where a party's
failure to meet a deadline is caused by inadvertence, mistake, or
carelessness, as well as by intervening circumstances beyond the party's
control. Kurka, 628 F.3d at 959. In determining whether neglect is excusable,
the following factors are particularly important: (1) the possibility of
prejudice to the defendant, (2) the length of the delay and the potential
impact on judicial proceedings, (3) the reason for the delay, including whether
the delay was within the party's reasonable control, and (4) whether the
party acted in good faith. Id. These factors do not bear equal weight, as the
reason for delay is generally a key factor in the analysis, see id., and as
discussed above, the reason for delay in this case has not been explained. See
Peer v. Vilsack, 2014 WL 2869710, at *2 (8th Cir. June 25, 2014).
The Court recognizes the possibility of prejudice based on the statute of
limitations applicable in this case. See Neb. Rev. Stat. § 25-224. But that does
not require the Court to extend the time for service, Kurka, 628 F.3d at 959,
and it is all the more true where the plaintiff can offer no legitimate reason
for the untimely service of process. Colasante v. Wells Fargo Corp., 81 Fed.
Appx. 611, 613-14 (8th Cir. 2003). The Court finds that the failure to serve
the unknown defendants was not due to excusable neglect, and the plaintiff's
claims against them must be dismissed pursuant to Rule 4(m).4

cannot guarantee that the plaintiff's information will suffice. The plaintiff is cautioned that
it is his responsibility to properly identify the defendants and where they can be served.
See, Gustaff v. MT Ultimate Healthcare, 2007 WL 2028103, at *3 (E.D.N.Y. June 21, 2007);
Gonzalez, 489 F. Supp. 2d at 184. If the defendants cannot effectively be served with
process at the addresses the plaintiff has provided, the failure will be imputed to him, and
his claims may still face dismissal pursuant to Rule 4(m). Gray v. Rose, 2009 WL 2132623,
at *3 (S.D. Ohio July 10, 2009); see, Gustaff, 2007 WL 2028103, at *3; Gonzalez, 489 F.
Supp. 2d at 184.
Pursuant to Rule 4(m), the dismissal is without prejudice. But as noted, the Court
recognizes that the claims may be time-barred and, thus, effectively dismissed with
prejudice. The Court has weighed that possibility accordingly.
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Furthermore, with respect to those two defendants, dismissal is also
appropriate pursuant to Rule 41(b). See, Boyle v. Am. Auto Serv., 571 F.3d
734, 742-43 (8th Cir. 2009); Schooley v. Kennedy, 712 F.2d 372, 373-74 (8th
Cir. 1983). The plaintiff's statutory privilege to rely on the Marshals Service
does not excuse his noncompliance with several orders and deadlines—
particularly those intended to adduce the information needed to serve the
remaining defendants. See Sanders v. Barrett, 2005 WL 2640979, at *1 (11th
Cir. Oct. 17, 2005); compare Anderson v. United States, 469 Fed. Appx. 507,
508 (8th Cir. 2012). Even pro se litigants must comply with relevant rules of
the substantive and procedural law. Schooley, 712 F.2d at 373. The plaintiff
received meaningful notice of what was required of him, see id., and failed to
provide it. Therefore, Rule 41(b) also warrants dismissal of the plaintiff's
claims against the unknown insurers.5
Finally, the plaintiff is strongly cautioned that although his two
primary claims seem to have survived his neglect of this case, that is solely
because § 1915(d) confers a statutory privilege on in forma pauperis litigants
with respect to service of process. If process is served, however, the plaintiff
will be expected to comply with the relevant substantive and procedural rules
and comply with the Court's deadlines and orders—and if his prosecution of
the case continues to be as dilatory as it has been to this point, he could again
potentially face dismissal pursuant to Rule 41(b). See Schooley, 712 F.2d at
373-74.
IT IS ORDERED:
1.

The Magistrate Judge's Findings and Recommendation
(filing 19) are adopted in part.

2.

The plaintiff's objection (filing 20) is overruled.

3.

The plaintiff's claims against two unknown insurance
companies are dismissed without prejudice pursuant to
Rules 4(m) and 41(b).

The Court has considered whether the plaintiff's Mitsubishi claims should also be
dismissed pursuant to Rule 41(b), despite the existence of good cause for his noncompliance
with Rule 4(m). But Moore clearly states that it was error for the district court to order a
plaintiff to complete process forms before the Marshals would effect service, and that
dismissing the case based on his failure to do so was an abuse of the district court's
discretion. 123 F.3d at 1085. The Court does not, therefore, believe that the Eighth Circuit
would endorse the Court's use of Rule 41(b) to do what it could not do under Rule 4(m). Cf.
Anderson, 469 Fed. Appx. at 508.
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4.

The Clerk of the Court is directed to sign filings 6 and 7,
complete forms USM-285 and USM-94 and any other
required forms, and forward them to the United States
Marshals Service along with copies of the plaintiff's
amended complaint (filings 9 and 9-1). The Marshals
Service shall service the summonses and amended
complaint without payment of costs or fees.

5.

The Clerk of the Court shall set a case management
deadline in this case for October 21, 2014, with the
following text: "Check completion of service of summons."

Dated this 23rd day of July, 2014.
BY THE COURT:

John M. Gerrard
United States District Judge

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