HARTMAN DESIGN INC. v. LEHIGH VALLEY HARDSCAPING, LLC et al
MEMORANDUM/OPINION THAT, AS THE PLAINTIFF HAS FAILED TO SUBMIT PROOF THAT IT TIMELY SERVED THE SUMMONSES AND COMPLAINT ON THE DEFENDANTS, THE COURT WILL DISMISS THIS ACTION WITHOUT PREJUDICE UNDER RULE 4(M). A SEPARATE ORDER FOLLOWS. SIGNED BY HONORABLE EDWARD G. SMITH ON 6/27/16. 6/27/16 ENTERED AND COPIES MAILED TO UNREPS AND E-MAILED. (ky, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
HARTMAN DESIGN INC.,
LEHIGH VALLEY HARDSCAPING, LLC,
and MATTHEW WEIS,
CIVIL ACTION NO. 16-1209
June 27, 2016
The plaintiff, Hartman Design Inc., commenced this action by filing a complaint against
the defendants, Lehigh Valley Hardscaping, LLC and Matthew Weis, on March 15, 2016. Doc.
No. 1. In the complaint, the plaintiff alleges that the court has jurisdiction over this action under
28 U.S.C. §§ 1331 and 1338 insofar as this is an action for patent infringement. Compl. at 2.
The plaintiff is in the business of “developing, designing, patenting, manufacturing, importing,
selling and/or offering for sale lighting products for use in connection with outdoor structures,
particularly hardscaping such as paved areas likes streets and sidewalks, walls, street amenities,
pools and fountains, fireplaces, firepits and the like.” Id. at 4. The plaintiff contends that the
defendants have infringed three of its patents: (1) the “398 Patent” titled “Lamp and Illuminated
Hardscape,” which was issued on November 29, 2011; (2) the “502 Patent” titled “Lamp and
Illuminated Hardscape,” which was issued on March 18, 2014; and (3) the “763 Patent” titled
“Light Fixture,” which was issued on September 9, 2008. Id. at 4-9. Based on the factual
allegations in the complaint, the plaintiff seeks, inter alia, (1) a determination that the defendants
infringed the above-referenced patents, (2) preliminary and permanent injunctive relief, (3)
compensatory and treble damages, and (4) attorney’s fees and costs. Id. at 9-10.
The docket entries in this case show that the clerk of court issued summonses for each
defendant to the plaintiff’s counsel on March 16, 2016. See Second Unnumbered Docket Entry
After Doc. No. 1. According to Rule 4(m) of the Federal Rules of Civil Procedure, the plaintiff
had 90 days, i.e. until June 13, 2016, to serve the summonses and copies of the complaint upon
the defendants. 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 90
days after the complaint is filed”). The plaintiff has not filed any proofs of service indicating
that it effected service of the summonses 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 summonses and complaint,
the court entered an order on June 16, 2016, requiring the plaintiff to show cause as to why the
court should not dismiss the action for lack of timely service of the summonses and complaint.
See Ord. to Show Cause, Doc. No. 4. 1 The court required the plaintiff to file a written response
by June 24, 2016, 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.
Rule 4(m) provides that if the plaintiff fails to serve a defendant within 90 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
On May 17, 2016, the undersigned’s civil deputy docketed a notice indicating that the plaintiff had until June 13,
2016, to properly serve the summonses and complaint upon the defendants or risk possible dismissal of his action.
See Notice, Doc. No. 3. This notice was electronically mailed to the plaintiff’s counsel. See Doc. No. 3, Display
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 to serve could result in the dismissal of
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 60-day notice from the
undersigned’s civil deputy or the order to show cause, the plaintiff 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 submit proof that it timely served the summonses and
complaint on the defendants, the court will dismiss this action without prejudice under Rule
A separate order follows.
BY THE COURT:
/s/ Edward G. Smith
EDWARD G. SMITH, J.
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