Becker et al v. Shaw University et al

Filing 70

Order Dismissing Case. Signed by Chief Judge Terrence W. Boyle on 7/23/2019. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:16-CV-4-BO

UNITED STATES OF AMERICA ex rel.
CICELY BECKER,
Plaintiff/Relator,

v.

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ORDER

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SHAW UNIVERSITY, FREDDY NOVELO)
d/b/a NOVELO'S CONSTRUCTION
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COMPANY, and COMET
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CONSTRUCTION COMPANY,
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Defendants.
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This cause comes before the Court on relator's response to this Court's order to show
cause why this action should not be dismissed for failure to effect proper service within the time
provided by Rule 4(m) of the Federal Rules of Civil Procedure. Relator was ordered to show
cause not later than July 1, 2019. [DE 68].
DISCUSSION
The Court dispenses with a full recitation of the factual background of this matter and it
incorporates by reference as if fully set forth herein the background recited in its order entered
June 14, 2019. [DE 68].
Relator responded to the to the show cause order on July 2, 2019, by stating that she has
served the summons and first amended complaint upon defendant Shaw University via Federal
Express on June 29, 2019, with delivery expected July 2, 2019.

She further states that the

defendants have already participated substantially in this action and have had actual notice of the

United States' claims for over a year, and therefore would not be prejudiced by extending the
time in which relator may effect service. [DE 69].
Rule 4(m) of the Federal Rules of Civil Procedure provides that
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). Good cause for failing to effect service within the time allowed generally
exists where a plaintiff has made "reasonable, diligent efforts to effect service on the defendant."

Hammad v. Tate Access Floors, Inc., 31 F. Supp.2d 524, 528 (D. Md. 1999) (internal quotation
and citation omitted). "Inadvertence, neglect, misunderstanding, ignorance of the rule or its
burden, or half-hearted attempts at service have generally been waived as insufficient to show
good cause." Vincent v. Reynolds Mem 'l Hosp., Inc., 141 F.R.D. 436, 437 (N.D.W. Va. 1992).
Relator was granted leave to file her amended complaint through October 15, 2018, but
failed to file her amended complaint until November 30, 2018. [DE 40; 48]. Summons were
issued on December 3, 2018, and no proof of service on any defendant has been filed to date. On
March 15, 2019, the Clerk of Court notified relator that service appeared not to have been
effected within the time allowed and that failure to respond to the notice would result in
dismissal of the defendants. [DE 54]. In her response to the show cause order, relator's counsel
states that once· service has been completed on defendant Shaw University he will file an
affidavit of service, but no affidavit reflecting that service has been completed has been filed as
of the date of filing of this order. Judgement pursuant to Fed. R. Civ. P. 54(b) was entered
against Freddy Novelo as to the intervened claims pursuant to his settlement agreement with the
United States. [DE 44]. However, Novelo doing business as Novelo's Construction Company
and Comet Construction Company is named as a defendant in the amended complaint and
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summons were issued for Novelo, but the docket does not reflect service having been effected or
attempted as to Novelo.
This record does not reflect any reasonable or diligent effort to effect service. Relator
filed her amended complaint beyond the time allowed, failed to request an extension of time to
file her amended complaint, and failed to respond to a notice from the Clerk regarding service
which instructed her that to do so would result in dismissal of the defendants. Indeed, although
relator recognized that her earlier attempt to serve the defendants via the Court's electronic filing
system was deficient, she took no corrective action until ordered to do so and has only attempted
to serve one defendant.
As for relator's remaining argument, that a defendant has notice of an action does not
necessarily excuse the failure to effect proper service.

"When there is actual notice, every

technical violation of the rule or failure of strict compliance may not invalidate the service of
process. But the rules are there to be followed, and plain requirements for the means of effecting
service of process may not be ignored." Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d
1087, 1089 (4th Cir. 1984). The notice defendants received of this action was due to the limited
participation of the United States, not any unsuccessful attempts at service by relator, and thus
there is more than a mere technical violation of Rule 4 present. See Beasley v. Bojangles'

Restaurants, Inc., No. 1:17CV255, 2018 WL 4518693, at *3 (M.D.N.C. Sept. 20, 2018). Relator

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has further failed to comply with the Court's orders setting filing deadlines and failed to respond
to the Clerk's notice. See id. Relator has failed to follow the plain requirements for effecting
service and has failed to offer any justification which the Court could construe as good cause.
Accordingly, dismissal of the defendants named in the amended complaint without
prejudice is required.

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CONCLUSION
Relator having failed to demonstrate good cause for failing to effect proper service within
the time allowed, the amended complaint is hereby DISMISSED WITHOUT PREJUDICE
pursuant to Fed. R. Civ. P. 4(m). The United States is NOTIFIED of this dismissal pursuant to
its notice of election to intervene in part [DE 34] and may respond within ten days of the date of
entry of this order if it objects to the dismissal. The clerk is DIRECTED to provide a copy of
this order to the United States and to close the case.

SO ORDERED, this

d:J day of July, 2019.

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CHIEF UNITED STATES DISTRICT JUDGE
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