VORPAHL v. KULMAN LAW FIRM
OPINION AND ORDER denying 4 Motion to Dismiss; that the Plaintiff is to effect proper service on Defendant within thirty (30) days of the entry of this Order. Signed by Judge John Michael Vazquez on 2/8/2018. (ld, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Not for Publication
Civil Action No. 17-1693
THE KULLMAN LAW FIRM,
OPINION & ORDER
John Michael Vazguez, U.S.D.J.
This matter comes before the Court upon Defendant The Kullman Law Firm’s
(“Defendant”) motion to dismiss the Complaint for failure to make effective and timely service of
process pursuant to Federal Rule of Civil Procedure 12(b)(5). D.E. 4. Plaintiff John Vorpahi
(“Plaintiff’) filed a brief in opposition to the motion, D.E. 7, to which Defendant replied. D.E. 8.’
The Court reviewed the submissions in support and in opposition, and considered the motion
without oral argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons
stated below, Defendant’s motion is DENIED.
On March 13, 2017, Plaintiff filed his Complaint against Defendant, alleging violations of
the Fair Credit Reporting Act, the New Jersey Identity Theft Prevention Act, and negligence. D.E.
Defendant’s brief in support of its motion to dismiss the Amended Complaint (D.E. 4) will be
referred to hereinafter as “Def. Brf.” Plaintiffs opposition (D.E. 7) to Defendant’s motion to
dismiss will be referred to “P1. Opp.” Defendant’s reply brief(D.E. 8) will be referred to as “Def.
1. A summons was issued on March 14, 2017. D.E. 2. On June 23, 2017, the Court moved, on
its own accord, to dismiss the Complaint pursuant to Rule 4(m). D.E. 3. One week later, on June
30, 2017, Plaintiff served Defendant. Def. Brf. at 1. The parties do not dispute that service was
late and that the delay was less than two weeks. Def Brf. at 2; P1. Opp. at 1.
On July 20, 2017, Defendant moved to dismiss the Complaint pursuant to Federal Rule of
Civil Procedure 1 2(b)(5) for failure to serve process within the time set by Federal Rule of Civil
Procedure 4(m). Plaintiff opposed the motion, D.E. 7, and Defendant replied. D.E. 8.
Federal Rule of Civil Procedure 4(m) governs the requirements for service ofprocess. Rule
4(m), in relevant part, provides:
Time Limit for Service. 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. Pursuant to Rule 12(b)(5), a party may move to dismiss a Complaint for
insufficient service of process. Sweet v. Ti’vllMgmt. Sys., 2006 WL 3675709, at *1 (D.N.J. Dec.
12, 2006). The moving party bears the burden of proof on the issue of improper service. Grand
Entm’t Grp., Ltd. v. Star Media Sales, Inc., 988 f.2d 476, 488 (3d Cir. 1993).
LAW AND ANALYSIS
At the outset, the Court notes that since the parties agree that service was untimely, the
only issue is whether the Court will excuse the improper service and grant Plaintiff an extension
of time to effectuate proper service. Before dismissing a complaint for untimely service, “a District
Court must first determine whether good cause exists for failure to serve.” felicetty-Stamm v.
Sec ‘v Dep ‘t ofHomeland Sec., 558 F. App’x 189, 191 (3d Cir. 2014) (citing Fetrucelli v. Bohringer
& Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995)). If the District Court finds good cause for the
delay, it must extend time for service. If it does not find good cause, the District Court has
discretion to nevertheless extend time for service or dismiss the complaint. Id.
Showing good cause “requires a demonstration of good faith on the part of the party
seeking enlargement and some reasonable basis for noncompliance within the time specified by
the rule.” Veal v. United States, $4 F. App’x 253, 256 (3d Cir. 2004) (citation omitted). Generally,
three factors are considered when determining whether good cause exists: “(1) reasonableness of
plaintiffs efforts to serve, (2) prejudice to the defendant by lack of timely service, and (3) whether
plaintiff moved for an enlargement of time to serve.”
MCI Telecommunications Corp.
Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995) (citing United States v. Nttttall, 122 F.R.D.
163, 166-67 (D. Del. 1988)); Kelly v. Connor, 2008 WL 4534065, at *1 (D.N.J. Oct. 3, 2008).
However, while prejudice is a factor, its absence is not sufficient to constitute good cause. MCI
Telecommunications Corp., 71f.3d at 1097. Instead, the “primary focus is on the plaintiffs
reasons for not complying with the time limit in the first place.” Id.
Here, factors weigh in favor and against the Court finding good cause for Plaintiffs
untimely service. Weighing against is the fact that Plaintiff did not attempt to serve Defendant
until after the Court, stta sponte, moved to dismiss the Complaint pursuant to Rule 4(m). D.E. 3.
Thus, Plaintiff did not attempt timely service. Plaintiff also never moved for an extension of time
for service. Plaintiff counsel explains that she never attempted service or sought an extension
because she simply failed to calendar the dates correctly. P1. Opp. at 2.
However, weighing in favor of finding good cause is the fact that Defendant does not allege
that the short delay in service caused it to suffer any prejudice. Plaintiff, further, claims that
Defendant was aware, within the time for proper service, of the Complaint because a reporter from
the New Jersey Law Journal contacted Defendant for a comment on the case. P1.
Defendant, however, argues that this supposed notice took the form of an attorney with The
Kuilman Firm not responding to an email or voicemail left from the reporter; Defendant concludes
that, as a result, it did not have actual notice of the suit. Def. Rep. at 7.
Overall, the Court finds the factors present in this case insufficient to justify finding that
good cause existed for untimely service. As noted, when determining good cause, a plaintiffs
explanation is the critical consideration. Here, Plaintiff did not attempt to make timely service
upon Defendant nor did he move for an extension. The improper service appears solely a result of
counsel’s calendar error. Defendant, for its part, did not evade service. While Defendant appears
to have suffered no prejudice, that factor alone is insufficient to find good cause.
Therefore, the remaining question is whether the Court will exercise its discretion to allow
an extension of time for proper service. Several factors weigh in favor of the Court doing so. First,
the delay beyond Rule 4(m)’s 90-day allowance was slight—less than two weeks.
Plaintiff appears blameless for his counsel’s error in improperly calendaring when service had to
be effectuated. See Szemple v. Univ. oflied. & Dentistiy ofNew Jersey, 162 F. Supp. 3d 423, 429
(D.N.J. 2016) (“If plaintiffs counsel erred
their inadvertence should not be visited on the
client.”). Third, while not dispositive, the Court notes that if it dismisses the Complaint, Plaintiff
will not be able to refile because the statute of limitations will have run.2 Fourth, Defendant and
The Third Circuit has been clear that a court should not consider statute of limitations as a
factor for extending time for proper service until at the discretion stage of analysis. In Petrucelli
v. Bohringer & Ratzinger, the Third Circuit stated:
We hold that a district court may not consider the fact that the statute
of limitations has run until after it has conducted an examination of
good cause. If the district court determines that good cause does not
exist, only then may it consider whether the running of the statute of
limitations would warrant granting an extension of time. We
has not shown prejudice due to the slight delay, and Defendant was on at least constructive notice
of the suit within the appropriate service period. Thus, the Court will exercise its discretion and
deny Defendant’s motion to dismiss.
Thus, for the reasons set forth above and for good cause shown,
IT IS on the 8th day of February, 201$,
ORDERED that Defendant’s motion to dismiss (D.E. 4) is DENIED; and it is further
ORDERED that the Plaintiff is to effect proper service on Defendant within thirty (30)
days of the entry of this Order.
emphasize that the running of the statute of limitations does not
require the district court to extend time for service of process.
Rather, absent a finding of good cause, a district court may in its
discretion still dismiss the case, even after considering that the
statute of limitations has run and the refiling of an action is barred.
46 F.3d 1298, 1306 (3d Cir. 1995).
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