UNITED STATES OF AMERICA v. ZOTTER
Filing
20
MEMORANDUM and ORDER denying 15 Motion to Dismiss; United States is directed to serve the defendant within 45 days of the entry of this order on the Court's docket. Signed by Chief Judge Gary L. Lancaster on 7/13/11. (map)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
Civil Action No. 11-0002
CRAIG S. ZOTTER,
Defendant.
MEMORANDUM
Gary L. Lancaster,
Chief Judge.
This is a
July
I ",
2011
breach of contract action to collect more
than $125,000.00 in unpaid student loan debt.
The United States
of America filed a complaint against Craig S.
Zotter on January
3, 2011.
In an opinion issued on May 9, 2011 1 we concluded that
Zotter had never been properly served and ordered the government
to serve Zotter within twenty
has
filed a
(20)
days
[doc.
no.
14].
Zotter
motion to dismiss alleging that he has still not
been served [doc. no. 15].
The government acknowledges that it
did not serve Zotter by the May 31,
2011 deadline,
but contends
that it was unable to do so because Zotter is evading service.
[doc. no. 19 at 6] .
Because there is no dispute that Zotter has yet to be
served,
and because more
than 120 days
government filed its complaint,
have passed since
the
in ruling on Zotter's motion to
dismiss we are actually deciding whether to "order that service
be made within a specified t
of
Civil
" in accordance with Federal Rule
Procedure
4 (m) .
To
do
whether good cause
exists
for
the
service
in
a
timely manner.
so
we
must
failure
If
so,
to
then
first
determine
have effectuated
we
must
grant
the
McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191,
extension.
196 (3d Cir. 1998); Petrucelli v. Bohringer & Ratzinger, 46 F.3d
1298,
1305
whether
(3d
a
Cir.
discretionary
Telecommunications
1098
(3d Cir.
are
to
by lack of t
enlargement
Corp.
1995).
consider
plaintiff's ef
an
1995).
rts
If
not,
extension
V.
we
must
is
Teleconcepts,
still
consider
appropr
teo
Inc.,
F.3d
71
MCI
1086,
In deciding whether good cause exists, we
three
factors:
to serve [;]
(2)
reasonableness
" (1)
prejudice to
of
defendant
ly service[;] and (3) whether plaintiff moved for
of
time."
that
the
government is not entitled to an extension for good cause,
but
Id.
at
We
1097.
find
we will grant the government a discretionary extension of time
because Zotter is evading service.
The government has failed to recognize or address the
three good cause factors set forth above.
consideration
not
exist
those factors,
this
case.
Upon our independent
we conclude that good cause does
Although
the
government
attempted
service, both in February of 2011 and in May of 2011, we do not
consider
its
efforts
to
be
particularly
reasonable.
government has done no more than visit Zotter's home on a
2
The
few
occasions, leaving each time when a knock on the door was either
not answered,
or answered by someone other than Zotter himself.
Service at a defendant's home is, of course, not the only method
of service permitted under the Federal Rules of Civil Procedure.
R.
FED.
P.
CIV.
In
4(e).
addition,
the
government
effectuate service under Pennsylvania state law.
400 (a)
and 402.
methods
is
That
immaterial
the government
under
the
prefers
could
Pa.R.C.P.
not
circumstances.
to
As
No.
use
such
such,
the
rst factor weighs against a finding of good cause.
The
second
factor
weighs
in
favor
nding
of
good
cause because Zotter is not prejudiced by the lack of service.
There is no dispute that he has had actual notice of the claims
against him since at least March of 2011.
F.3d 756, 759 (3d Cir. 1997)
However,
did
not
request
Boley v. Kaymark, 123
(collecting cases).
there is also no dispute that the government
an
additional
extension
deadline set forth in our May 9,
of
time
before
2011 order passed,
even though
its last attempt at service occurred ten days prior.
attorney
exercising
notified
this
reasonable
court
of
its
care
belief
and
A prudent
diligence
that
Zotter
the
would
was
have
evading
service and its resulting inability to comply with the deadline
set
forth
allowed
in
the
the
May
deadline
9,
2011
to
order.
pass.
Instead
Therefore,
weighs against a finding of good cause.
3
the
the
government
final
factor
Under these facts,
we
find that
the
government
has
failed
to demonstrate
good cause
for its failure to have served Zotter.
However,
grant
the
we will,
government
a
in the exercise of our discretion,
further
extension
of
serve Zotter because he is evading service.
If he were not,
at 1305-06 & n.7.
time
in which
to
Petrucelli, 46 F.3d
there would be no reason for
the door of his home not to be answered when people are seen in
the window,
such
lights are on,
conduct
actionably
to
be
and cars are in the garage.
particularly
unethical,
given
egregious,
potentially
is
Zotter
that
and
We find
licensed
a
Pennsylvania attorney.
we
Nevertheless,
reiterate
that
service
at
a
defendant's home is not the only method of service available to
the government.
Zotter, a practicing attorney,
downtown
Pittsburgh.
He presumably maintains
order
to
service
clients,
their
behalf.
should be
service
government
place
of
because
requests,
service,
With
able
upon
his
to
locate
him.
can
make
business.
Zotter
has
some
FED.
and makes
measure
him
R.
service
in
Crv.
P.
No.
to
office
to
hours
in
appearances
court
effort,
order
through
Pa.R.C. P.
refused
of
has an office in
on
the
effectuate
If
4 (e) (2) (A) •
the
She
ff
at
402 (a) (2) (iii) .
waive
government
service,
personal
not,
Zotter's
Notably,
despite
two
all expenses incurred in connection with effectuating
including related attorney's fees,
4
will
be imposed on
Zotter.
R.
FED.
evasion
Crv.
service,
door to his home,
P.
to
As
4 (d) (2) •
include
such,
refusing
Zotter's continued
to
simply
or directing other family members
does no more than delay resolution of this
case
answer
the
to do so,
on its merits
and cost Zotter himself money.
The government is cautioned that its efforts to serve
Zotter must go beyond those methods undertaken to date.
Zotter continue to evade service,
so
notify
efforts
secure
this
to
serve
service
notify the
court,
service period.
Zotter.
wi thin
court
and
the
the government is to promptly
provide
Should
time
in advance of
Should
detailed
evidence
the
government
allot ted,
the
result
unable
government
the expiration of
Failure to do so will
be
of
the
is
its
to
to
extended
in dismissal of
this action.
An
appropriate
order
will
with this memorandum.
5
be
led
contemporaneously
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
Civil Action No. 11-0002
CRAIG S. ZOTTER,
Defendant.
ORDER
AND
NOW,
this
\~
day
of
July,
ORDERED that Zotter's motion to dismiss
2011,
[doc. no.
it
is
HEREBY
15] is DENIED;
and
It
is
FURTHER
ORDERED
that
The
United
America is directed to serve Zotter within forty-five
States
(45)
of
days
of the entry of this Order on the court's docket.
BY THE COURT,
~
r-~--------------------' C.J.
cc:
All Counsel of Record
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