Taylor et al v. State Farm Fire and Casualty Company
MEMORANDUM OPINION AND ORDER, denying 6 MOTION to Dismiss and ruling 11 Plaintiffs' Motion to Supplement and Object as moot. Signed by Honorable Robin J. Cauthron on 02/17/21. (wh)
Case 5:21-cv-00015-C Document 12 Filed 02/17/21 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
LEON and KIMBERLY TAYLOR,
Brother and Sister,
STATE FARM, FIRE AND
Case Number CIV-21-15-C
MEMORANDUM OPINION AND ORDER
Plaintiff filed the present action asserting claims for breach of contract and bad faith
following disagreement over the extent of hail damage to a home owned by Plaintiffs and
insured by Defendant. Defendant seeks dismissal of the case based on Plaintiffs’ failure
to timely effect service of process. This action was originally filed in state court on June
8, 2020, by Plaintiffs acting pro se. Plaintiffs retained counsel on November 5, 2020.
Counsel filed an Amended Petition on November 23, 2020, properly naming Defendant.
Defendant was served on December 8, 2020. Defendant then removed the action on
January 11, 2021.
Plaintiffs concede service was untimely but argue they have
demonstrated good cause for the delay. The parties are in agreement that if the Court
grants Defendant’s Motion, the dismissal will be without prejudice and that Plaintiffs could
then refile the action.
Case 5:21-cv-00015-C Document 12 Filed 02/17/21 Page 2 of 3
Because the events determinative of Defendant’s Motion occurred prior to removal,
the Court will be guided by Oklahoma law. The issue is governed by 12 Okla. Stat.
§ 2004(I). That statute states:
If service of process is not made upon a defendant within one hundred eighty
(180) days after the filing of the petition and the plaintiff has not shown good
cause why such service was not made within that period, the action shall be
deemed dismissed as to that defendant without prejudice. The action shall
not be dismissed if a summons was served on the defendant within one
hundred eighty (180) days after the filing of the petition and a court later
holds that the summons or its service was invalid. After a court quashes a
summons or its service, a new summons may be served on the defendant
within a time specified by the judge. If the new summons is not served within
the specified time, the action shall be deemed to have been dismissed without
prejudice as to that defendant. This subsection shall not apply with respect to
a defendant who has been outside of this state for one hundred eighty (180)
days following the filing of the petition.
Unless Plaintiffs demonstrate good cause for the delay, their action is deemed dismissed as
of the 181st day. Thibault v. Garcia, 2017 OK CIV APP 36 ¶ 17, 398 P.3d 331, 334-35.
Neither party offers any Oklahoma authority for what constitutes good cause or how
Plaintiffs’ efforts should be measured. The Oklahoma Supreme Court has suggested this
is largely a matter for the Court’s discretion. See Willis v. Sequoyah House, Inc., 2008
OK 87, ¶ 11, 194 P.3d 1285, 1289 (“Whether good cause has been demonstrated is left
largely to the discretion of the trial court.”). Guiding the exercise of this discretion is the
overarching desire for cases to be resolved on their merits.
“While it is true that diligence of litigants in attending to their matters
pending in the courts is of importance, and while it is a significant function
of the courts that the litigation before them be determined and disposed of as
rapidly as possible, it is also important that all litigants be given a reasonable
opportunity to have their day in court, and to have their rights and liberties
Case 5:21-cv-00015-C Document 12 Filed 02/17/21 Page 3 of 3
tried upon the merits. The latter is and should be the primary right of the
parties and duty of the courts.”
Boston v. Buchanan, 2003 OK 114, ¶ 17, 89 P.3d 1034, 1040–41 (quoting Beck v. Jarrett,
1961 OK 162, 363 P.2d 215, 218). In an affidavit by counsel, Plaintiffs assert the delay
in service arose from the late entry of counsel, which occurred several months after the
action had been filed; counsel’s need to investigate the facts of the case to ensure it had
merit; ensuring that the proper Defendant was named; a delay in learning that summons
had been issued due to COVID-19 restrictions in the state court (this occurred despite
Plaintiffs’ counsel submitting a postage-paid envelope for return of the summons once
issued); and overall press of counsel’s other cases and the intervening Thanksgiving
After consideration of these facts, the Court finds that Plaintiffs have
demonstrated good cause for delay in serving Defendant.
Motion will be denied.
As set forth more fully herein, Defendant’s Motion to Dismiss (Dkt. No. 6) is
DENIED. Plaintiffs’ Unopposed Motion to Supplement Their Response and Objection to
Defendant’s Motion to Dismiss (Dkt. No. 11) is moot.
IT IS SO ORDERED this 17th day of February, 2021.
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