STATE FARM FIRE & CASUALTY COMPANY v. FRANCISCO

Filing 4

MEMORANDUM OPINION. SIGNED BY HONORABLE EDWARD G. SMITH ON 12/23/15. 12/23/15 ENTERED AND COPIES MAILED TO UNREP, E-MAILED.(er, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
STATE FARM FIRE & CASUALTY
COMPANY,
Plaintiff,
v.
BRIAN M. FRANCISCO,
Defendant.

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CIVIL ACTION NO. 15-4273

MEMORANDUM OPINION
Smith, J.

December 23, 2015

The plaintiff, State Farm Fire & Casualty Company, commenced this subrogation action
by filing a complaint against the defendant, Brian M. Francisco, on August 3, 2015. Doc. No. 1.
In the complaint, the plaintiff alleges that the court has diversity jurisdiction over this action
insofar as it is a citizen of the State of Illinois and the defendant is a resident of the
Commonwealth of Pennsylvania. 1 Compl. at ¶¶ 1, 3. The plaintiff asserts a negligence cause of
action against the defendant as a result of a fire on July 16, 2015, which originated in the kitchen
of the property located at 2515 Girard Avenue, West Lawn, Pennsylvania. Id. at ¶¶ 2, 5. The
plaintiff claims that the defendant, while cooking in the kitchen, left the stove unattended after
which a fire ignited and spread into the subject property at 2315 Girard Avenue, owned by its
insureds, the subrogors, Vincent and Francine Swanier. Id. at ¶¶ 2, 7-10. The plaintiff claims that
as a result of the defendant’s negligence, the subrogors suffered substantial damage to their real
and personal property. Id. at ¶ 11. The plaintiff paid the subrogors, in accordance with the terms

1

Although there is an issue with the jurisdictional allegation relating to the defendant, the court need not address it
here.

of their homeowner’s insurance policy, “monies in excess of $150,000.00” for “covered damages
in connection with the fire.” Id. at ¶ 12.
The docket entries in this case show that the Clerk of Court issued a summons for the
named defendant to the plaintiff on August 4, 2015. See First Unnumbered Docket Entry
Between Doc. Nos. 1, 2. According to Rule 4(m) of the Federal Rules of Civil Procedure, the
plaintiff had 120 days, i.e. until December 1, 2015, to serve the summons and complaint upon
the defendant. See Fed. R. Civ. P. 4(c)(1) (requiring plaintiff to serve summons with copy of
complaint); Fed. R. Civ. P. 4(m) (requiring plaintiff to serve defendant with process “within 120
days after the complaint is filed”). 2 The plaintiff has not filed a proof of service indicating that it
effected service of the summons and complaint in this matter. See Fed. R. Civ. P. 4(l)(1)
(“Unless service is waived, proof of service must be made to the court.”).
Because it appeared that the plaintiff failed to timely serve the summons and complaint,
the court entered an order on December 7, 2015, requiring the plaintiff to show cause as to why
the court should not dismiss the action for lack of timely service of the summons and complaint.
See Ord. to Show Cause, Doc. No. 3. 3 The court required the plaintiff to file a written response
by December 21, 2015, and stated that if it failed to respond, the court would interpret its failure
as an indication that it is unopposed to the court dismissing this action. Id. at ¶ 2. To date, the
plaintiff has not responded to the order to show cause.

2

Rule 4(m) was amended on April 29, 2015, effective December 1, 2015. The amendment changed the time for
serving a defendant from 120 days to 90 days. As the amendment became effective after the 90th day for service in
this case, the court has applied the former version of the Rule.
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In the order to show cause, the court noted that the undersigned’s civil deputy sent the plaintiff a notice
approximately 30 days prior to the order indicating that it had until December 3, 2015, to properly serve the
summons and complaint upon the defendant or risk possible dismissal of its action. See Ord. to Show Cause at n.2.
Although it appears this calculation was off by two days, the plaintiff still had not filed proof of service by
December 3, 2015. Thus, the order to show cause was the second notice from this court informing the plaintiff of
the possibility that the failure to effect service or show good cause for the failure could result in the dismissal of this
action.

2

The applicable version of Rule 4(m) provides that if the plaintiff fails to serve a
defendant within 120 days,
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). Rule 4(m) “require[s] a court to extend time if good cause is shown and . .
. allow[s] a court discretion to dismiss or extend time absent a showing of good cause.”
Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995).
Here, as the plaintiff has failed to respond to either the 90-day notice from the
undersigned’s civil deputy or the order to show cause, it has not shown good cause for the failure
to effect service in this case. In addition, while the court is cognizant of the possibility that the
court could relieve the plaintiff of the consequences even if, as in this case, good cause did not
exist, none of the situations discussed in the notes to Rule (4) are applicable here. See Fed. R.
Civ. P. 4(m), advisory committee’s note (1993) (discussing examples of situations that could
justify, in the absence of good cause, a court extending the time for a plaintiff to effect service
rather than dismissing the action for a failure to serve). Moreover, the court can conceive of no
reason to excuse the plaintiff from the dismissal of this action. Accordingly, as the plaintiff has
failed to serve the summons and complaint on the defendant, the court will dismiss this action
without prejudice under Rule 4(m).
A separate order follows.

BY THE COURT:

/s/ Edward G. Smith, J.
EDWARD G. SMITH, J.
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