Mick v. Stanforth et al

Filing 36

ORDER finding as moot 29 Motion to Dismiss; ORDER GRANTING Plaintiffs Motion for Extension of Time to Perfect Service, Doc. No. 33, is GRANTED. Plaintiff is GRANTED an extension of time of 90 days to perfect service on defendant Terry A. Olsen, Jr. Signed by Magistrate Judge Norah McCann King on 5/27/09. (jcw)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION NANCY EILEEN MICK, Plaintiff, vs. VERNON P. STANFORTH, et al., Defendants. OPINION AND ORDER This is a civil rights action under 42 U.S.C. § 1983 in which plaintiff, the administratrix of the Estate of Lori Bailey, alleges that defendants' actions in connection with their failure to enforce a civil protection order obtained by the decedent against her husband resulted in the latter's kidnaping and murder of the decedent, as well as property damage to the residence. This matter is before the Court Civil Action 2:08-CV-990 Judge Frost Magistrate Judge King

on plaintiff's motion for an extension of time to perfect service. Plaintiff's Memorandum in Opposition to Defendant Terry Olsen, Jr.'s Motion to Dismiss or, in the Alternative, Motion for Extension of Time to Perfect Service, Doc. No. 33 ("Motion for Extension"). This action was filed on October 20, 2008, naming, inter alia, Terry A. Olsen, Jr., as a defendant. Complaint, Doc. No. 1. On

October 31, 2008, plaintiff attempted service on defendant Olsen in Ohio, but the summons was returned unexecuted on November 20, 2008. Doc. Nos. 7 and 15. Plaintiff searched for defendant Olsen's

whereabouts, utilizing Lexis Nexis and the Florida motor vehicles registration records. Motion for Extension, p. 2 (citing Exhibits 2, The Florida Bureau of Motor Vehicles

2A, 3 and 3A, attached thereto).

reflected an address of 4189 Timberline B1, Venice, Florida, for defendant Olsen. Id.

Thereafter, plaintiff issued a summons to defendant Olsen at that address. executed. Doc. No. 17. Doc. No. 19. On December 2, 2008, that summons was returned Plaintiff believed that service of process Motion for Extension, p. 2. However,

had been properly executed.

defendant Olsen has moved to dismiss the action, arguing that service was defective. Defendant Terry Olsen Jr.'s Motion to Dismiss Due to

Insufficient Service of Process, Doc. No. 29 ("Motion to Dismiss"). More specifically, defendant Olsen contends that it is his father, Terry A. Olsen, Sr., who lives at the Venice, Florida address, along with defendant Olsen's stepmother; that defendant Olsen did not live there at the time the Complaint was delivered; and that defendant Olsen has not spoken to his father or stepmother about the Complaint. Id. at 2 (citing Affidavit of Terry A. Olsen, Jr. ("Olsen Aff."), attached to Motion to Dismiss). Defendant Olsen contends that there

is no evidence that he received the Complaint and that service at the Venice, Florida, residence was not reasonably calculated to apprise him of the litigation. Id. at 3.

Plaintiff argues that yet additional sources indicate that defendant Olsen's address is 4189 Timberline B1, Venice, Florida, which is where service was obtained via certified mail return receipt requested. Motion for Extension, p. 3 (citing Exhibits 4 and 5, However, plaintiff requests that, should the Court

attached thereto).

determine that service at that address was not perfected, or should the Court wish to hold in abeyance its decision on the Motion to Dismiss, the Court grant an extension of 90 days to allow plaintiff to 2

perfect service.

Id. at 7.

Rule 4(m) of the Federal Rules of Civil Procedure requires that claims against any party not served within 120 days be dismissed without prejudice unless good cause is shown for the failure to make timely service of process. A finding of good cause for an extension

of time in which to serve a defendant is a matter of discretion entrusted to the district court. F.2d 1151, 1157 (6th Cir. 1991). Friedman v. Estate of Presser, 929 Inadvertence on the part of counsel

or "half-hearted efforts to serve a defendant within the statutory period does not constitute good cause." Id. Instead, establishing

good cause requires a showing of "at least excusable neglect." Stafford v. Franklin County, No. 2:04-cv-178, 2005 U.S. Dist. LEXIS 12740, at *8 (S.D. Ohio June 28, 2005). In this case, plaintiff first attempted to serve defendant Olsen in Ohio at an addressed used by a county prosecutor in 2007 in a criminal action. Motion for Extension, p. 1. When that attempt

failed, plaintiff utilized several different methods to locate defendant Olsen's whereabouts, including Lexis Nexis, the Florida Bureau of Motor Vehicles database and a registration for a Florida Concealed Weapon Permit. to Motion for Extension. See Exhibits 2, 2A, 3, 3A, 4 and 5, attached Once it appeared that an address in Venice,

Florida, for defendant Olsen was valid, plaintiff issued a second summons, which was returned executed. Assuming, without deciding, that plaintiff has failed to perfect service, the Court concludes that plaintiff has demonstrated good cause for her purported failure to properly serve process on defendant Olsen. Moreover, the Court notes that the United States Court of 3

Appeals for the Sixth Circuit has expressed a "strong preference" for cases to be decided on the merits. Shepard Claims Serv., Inc. v.

William Darrah & Assoc., 796 F.2d 190, 193 (6th Cir. 1986). Accordingly, under these circumstances, the Court concludes that an extension of time to properly serve defendant Olsen is appropriate.

WHEREUPON, Plaintiff's Memorandum in Opposition to Defendant Terry Olsen, Jr.'s Motion to Dismiss or, in the Alternative, Motion for Extension of Time to Perfect Service, Doc. No. 33, is GRANTED. Plaintiff is GRANTED an extension of time of 90 days to perfect service on defendant Terry A. Olsen, Jr. In light of the foregoing, Defendant Terry Olsen Jr.'s Motion to Dismiss Due to Insufficient Service of Process, Doc. No. 29, is MOOT. The Clerk is DIRECTED to remove that motion from the Court's pending motions list.

May 27, 2009

s/Norah McCann King Norah McCann King United States Magistrate Judge

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