Zell v. Klingelhafer et al
Filing
61
ORDER denying 26 Motion for Reconsideration ; granting 18 Motion for Extension of Time in which to serve process on defendants. Signed by Magistrate Judge Mark R. Abel on 04/10/2014. (sr1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Eileen L. Zell,
:
Plaintiff
:
Civil Action 2:13-cv-0458
:
Judge Marbley
Katherine M. Klingelhafer, et al.,
:
Magistrate Judge Abel
Defendants
:
v.
ORDER
This matter is before the Magistrate Judge on defendants’ December 27, 2013
motion for reconsideration of the December 26, 2013 Order granting plaintiff an
extension of time to serve summons and complaint (doc. 26).
Background. On December 4, 2013, plaintiff filed a motion seeking additional
time in which to serve defendants pursuant to Rule 4(m) of the Federal Rules of Civil
Procedure. On May 10, 2013, plaintiff filed this action against Frost Brown Todd LLC
(“FBT”), five current FBT attorneys, and one former FBT attorney. Under Rule 4(m),
plaintiff had until September 9, 2013 in which to serve defendants.
According to documents filed by Kirk Wilhite, the owner of the Columbus, Ohio
process-serving company Accuserve and Associates, service was perfected on six of the
seven defendants prior to September 9, 2013. Service was not perfected with respect to
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defendant Jeffrey Rupert, a former attorney of FBT, who now resides in the state of
Washington.
Jonathan R. Zell, plaintiff’s son and a licensed attorney who initially represented
his mother in this action, was responsible for ensuring that defendants were properly
served with copies of the complaint and summons. After filing the complaint, Zell
attempted to find trial counsel before the 120-day service period ended. A month prior
to the deadline, Zell was hospitalized and incapacitated for three weeks, so he hired
professional process servers in three states in order to perfect service.
Zell hired Kirk Wilhite to serve the five Ohio defendants and to subcontract with
process servers in Kentucky and Washington to serve the out-of-state defendants. Zell
believed that six of the seven defendants were served prior to the deadline.
According to Zell, difficulties were encountered in serving Rupert. Rupert’s
employer and work address in Washington were not known. Wilhite subcontracted
with a Washington state process server, Timothy Shafer, in order to serve Rupert.
Wilhite did not know Shafer prior to engaging him to serve Rupert. According to
Wilhite’s affidavit, he paid Shafer to make at least three attempts to serve Rupert, but
after making two unsuccessful attempts, Shafer stopped communicating with Wilhite.
Doc. 18-3 at PageID# 204.
On September 11, 2013, Zell reached Rupert on his mobile phone. Rupert asked
Zell to mail a copy of plaintiff’s complaint and told him that he would not evade
service. The certified mail return receipt that was sent to Rupert’s office was stamped
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received, and Rupert personally received and signed the certified mail return receipt
that was sent to his home.
Arguments of the Parties. According to plaintiff, under Rule 4(m), a court has the
discretion to grant a plaintiff an extension of time in which to effect service. If the
plaintiff has good cause for the failure, however, the court must extend the time for
service. Plaintiff argues that the court should find good cause to grant an extension of
time. Plaintiff maintains that all seven defendants received actual notice of the lawsuit
prior to the deadline for service. By letter dated September 15, 2013, Rupert also
acknowledged receiving a copy of the complaint. All seven defendants also filed timely
answers to the complaint, which supports a finding that defendants received actual
notice of the lawsuit.
Plaintiff contends that defendants would not suffer any prejudice if plaintiff is
permitted additional time in which to serve them. Plaintiff maintains that any prejudice
to defendants is de minimis when compared to the prejudice to plaintiff if the Court
dismisses plaintiff’s complaint. Defendants have also raised a statute of limitations
defense, but plaintiff maintains that the suit was timely filed and that any dismissal
could be remedied by refiling and service under the savings statute.
Plaintiff further argues that any failure to timely serve defendants resulted from
excusable neglect. She maintains that there is no danger of prejudice to defendants. The
length of delay is quite short and will have no significant impact on the proceedings.
The reason for the delay is based on the apparent fraudulent conduct of the process
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servers employed by plaintiff. Although plaintiff had no personal awareness that would
cast doubt on the veracity of the documents submitted by Wilhite indicating that he
served the Ohio defendants, any problems with those documents would be the result of
Wilhite’s fraud, not plaintiff’s neglect. Plaintiff has acted in good faith. Although Zell
delayed in hiring process servers, he was preoccupied with locating a trial attorney.
When the deadline for service was approaching, Zell became ill and required
hospitalization. Despite his illness, he made attempts to hire process servers to meet the
deadline. Any failure to meet that deadline was based on the misconduct of the process
servers. When Zell learned that the process server had failed to serve Rupert, he took
immediate action to try to serve Rupert.
In opposition to plaintiff’s motion, defendants argue that plaintiff has been aware
that FBT contested service since the inception of this lawsuit and had challenged the
proofs of service filed by Wilhite. Wilhite has refused to respond to a subpoena and
defendants’ motion to show cause. Defendants maintain that there is no good cause
which would justify an extension of time beyond that set forth in Rule 4(m). Defendants
argue that something more than inadvertence or half-hearted efforts to serve are
necessary to show good cause. Courts examined whether a plaintiff made a reasonable
and diligent effort to effect service. Defendants contend that plaintiff’s attempts at
service were half-hearted at best. She waited until August 29, 2013 to hire a process
server, when she only had a few remaining days left in which to effect service. Plaintiff
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waited almost two and a half months after FBT filed its answer to request additional
time even though plaintiff was aware that service was contested.
Defendants contend that plaintiff will not be harmed by a dismissal because her
claims will likely be time barred. FBT maintains that plaintiff’s claims were already
time-barred when this action was filed, and a dismissal without prejudice will not
change that result. Plaintiff would still be able to rely on Ohio’s savings statute in the
even that her claims were timely filed.
Discussion. The service of process upon a defendant is a fundamental
requirement in litigation. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344,
350 (1999). Without service, a district court is without jurisdiction to render a personal
judgment against a defendant. Hutchinson v. U.S., 677 F.2d 1322, 1328 (6th Cir. 1982).
“The plaintiff is responsible for having the summons and complaint served within the
time allowed by Rule 4(m)”. Fed. R. Civ. Pro. 4(c)(1). Service of process in the Southern
District of Ohio can be effected by personally delivering a copy of the complaint and
summons to the defendant or its agent, or by other means permitted under the law of
Ohio. See Rule 4(e)(1) & (2).
Under Rule 4(m), a defendant should be dismissed if he is not served within 120
days of the filing of the complaint. If the plaintiff shows good cause for the failure to
serve within 120 days, however, the court must extend the time for service. To
demonstrate good cause, a plaintiff must show that she made a reasonable and diligent
effort to effect service. Habib v. General Motors Corp., 15 F.3d 72, 74 (6th Cir. 1994).
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“Courts interpreting the rule have found ‘good cause’ to encompass more than a single
unsuccessful attempt at service and that more is required than ‘simple inadvertence or
mistake of counsel or ignorance of the rules.’” Boykin v. Commerce Union Bank of Union
City, Tenn., 109 F.R.D. 344, 348 (W.D. Tenn., 1986)(citing Winters v. Teledyne Movible
Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985)). It is within the court’s discretion to
determine whether good cause exists to extend the deadline for serving defendants. In
exercising this discretion, courts consider:
(1) whether a significant extension of time [is] required; (2) whether an
extension of time would prejudice the defendant other than the inherent
‘prejudice’ in having to defend the suit; (3) whether the defendant had
actual notice of the lawsuit; (4) whether a dismissal without prejudice
would substantially prejudice the plaintiff ... and (5) whether the plaintiff
had made any good faith efforts at effecting proper service of process.
Becker v. Warden Ross Correctional Institution, No. 2:05-cv-908, 2006 WL 2869567, at *4
(S.D.Ohio,2006)(citing Stafford v. Franklin County, No. 2:04-cv-178, 2005 WL 1523369 at
*9-10 (S.D. Ohio 2005).
Here, there is good cause to extend the time for serving defendants. The docket
indicates that plaintiff re-served all the defendants, so no further extension is necessary
at this stage of the proceedings. Other than having to defend this action, defendants face
no other prejudice. To the contrary, dismissing this case without prejudice would likely
increase the litigation costs of both parties given that plaintiff would likely re-file this
case under the Ohio savings statute. It appears that the defendants all had actual notice
of this lawsuit and timely filed their answer.
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Plaintiff did more than make a half-hearted attempt at service; she hired a
professional process server who was instructed to make service prior to the Rule 4(m)
deadline. Proofs of service were in fact filed by the process server. As a result, plaintiff
had no reason to believe that service had been perfected with respect to six of the seven
defendants. Although defendants dispute the authenticity of the proofs of service,
nothing in record suggests that plaintiff was aware of or played any part in any possible
wrongdoing by Wilhite. Rather, plaintiff would herself be the victim of Wilhite’s alleged
fraud. Plaintiff acknowledges that Rupert was not timely served, but this failure was
also due in part to the apparent deficiencies on that part of the process server in
Washington state. Plaintiff reacted promptly when she learned that Rupert had not been
served in accordance with Rule 4(m).
For the reasons stated above, defendants’ December 27, 2013 motion for
reconsideration of the December 26, 2013 Order granting plaintiff an extension of time
to serve summons and complaint (doc. 26) is DENIED. Plaintiff’s December 4, 2013
motion for an extension of time in which to serve process on defendants (doc. 18) is
GRANTED.
Under the provisions of 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P., and
Eastern Division Order No. 91-3, pt. F, 5, either party may, within fourteen (14) days
after this Order is filed, file and serve on the opposing party a motion for
reconsideration by the District Judge. The motion must specifically designate the
Order, or part thereof, in question and the basis for any objection thereto. The District
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Judge, upon consideration of the motion, shall set aside any part of this Order found to
be clearly erroneous or contrary to law.
s/Mark R. Abel
United States Magistrate Judge
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