Soto - Acevedo et al v. Padilla et al
Filing
34
ORDER denying 29 Motion to Dismiss. Payment of sanctions due by 9/7/2012. Service of Process due by 10/9/2012. Signed by Judge Jay A Garcia-Gregory on 8/24/2012. (RJC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ALMA IVETTE SOTO-ACEVEDO, JAIME
ORLANDO VALENTIN SERRANO and
the
Conjugal
Partnership
CIVIL NO.
Comprised by them,
10-1931 (JAG)
Plaintiffs
v.
ALFREDO PADILLA, et al.,
Defendants.
OPINION & ORDER
Garcia-Gregory, D.J.
Alma
Serrano,
Ivette
both
Soto-Acevedo
married
under
and
Jaime
a
Orlando
Conjugal
Valentin-
Partnership,
(“Plaintiffs”) filed a Complaint on September 24, 2010 alleging
that Puerto Rico government employees Alfred Padilla, Antonio
Salva,
Hilda
Enid
Davila-Feliciano
and
Lorraine
Vega,
(“Defendants”) discriminated against Plaintiffs on the basis of
their political affiliation. (See Docket No. 2). On October 15,
2010, Summons were issued and served on November 22, 2010. (See
Docket Nos. 4 and 5).
Defendants,
without
submitting
themselves
to
the
jurisdiction of the Court, filed a motion to dismiss pursuant to
FED. R. CIV. P. 12(b)(5), alleging that the service of process was
deficient because the person who was served was not authorized
CIVIL NO. 10-1931 (JAG)
by
the
Defendants
to
2
receive
process
on
their
behalf.
(See
Docket No. 8). After various motions filed by both parties and
various
court
orders,
on
August
23,
2011,
the
Court
denied
Defendants’ motion to dismiss and instead granted an extension
of time to serve summons on the Defendants in their personal
capacities. (See Docket No. 19).
Accordingly, on August 24, 2011, a notice of “Summons to be
Issued to Antonio Salva” was made and such Summons was issued on
August 26, 2011. (See Docket Nos. 21 and 22). On August 30,
2011, the Summons was served upon Antonio Salva in his personal
and official capacity, and on October 11, 2011, he answered the
Complaint. (See Docket Nos. 23 and 27).
On
December
29,
2011,
the
Court
ordered
Defendants
to
answer, acknowledging the fact that only co-defendant Antonio
Salva
had
Defendants
answered
-Alfred
the
complaint
Padilla,
Hilda
and
Enid
that
Davila
the
remaining
Feliciano
and
Lorraine Vega- should answer by January 12, 2012. (See Docket
No. 28).
On
January
11,
2012,
the
remaining
Defendants,
without
submitting themselves to the jurisdiction of the Court, filed a
Motion to Dismiss claiming that they were never sued in their
personal and official capacity. (See Docket No. 29). In summary,
said motion establishes that only the co-defendant Antonio Salva
was
served
while
the
remaining
Defendants
were
never
served
CIVIL NO. 10-1931 (JAG)
3
properly. Plaintiffs opposed that motion, claiming that the only
reason the remaining Defendants were not served properly was
“inadvertent” and “due to a clerical error in the office”. (See
Docket No. 30).
STANDARD OF REVIEW
“Effectuation of service is a precondition to suit.” See
Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998).
FED. R. CIV. P. 12(b)(5) permits a court to dismiss an action for
“insufficient service of process.” See Fed. R. Civ. P. 12(b)(5).
A defendant may “object to the plaintiff's failure to comply
with
the
procedural
requirements
for
proper
service
of
the
summons and complaint” as set forth in Rule 4. See Thompson v.
Sears, Roebuck and Co., No. 04-5342, 2006 WL 573796 at *2 (E.D.
Pa. 2006). “In resolving a motion under Rule 12(b)(5), the party
making the service has the burden of demonstrating its validity
when an objection to service is made.” Id. (citing Reed v. Weeks
Marine, Inc., 166 F. Supp. 2d 1052, 1054 (E.D. Pa. 2001)).
DISCUSSION
After filing the complaint, the plaintiff “may present a
summons to the clerk for signature and seal.” See FED. R. CIV. P.
4(b). The clerk then issues a “a copy of the summons that is
addressed
to
served. Id.
multiple
defendants”
for
each
defendant
to
be
CIVIL NO. 10-1931 (JAG)
4
The purpose behind Rule 4 “is to give a party notice of the
proceedings in sufficient time to prepare an adequate defense.”
See SEC v. Beisinger Indus. Corp., 552 F.2d 15, 20 (1st Cir.
1977). The service of process is the method through which a
court
may
acquire
jurisdiction
over
the
defendant.
In
the
absence of service of process, a court may not exercise power
over a party the complaint names as defendant. See Murphy Bros.,
Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999).
Also,
there
is
a
time
limit
of
120
days
during
which
the
plaintiff must deliver a summons and a copy of the complaint.
See FED. R. CIV. P. 4(m). Failure to deliver the summons or to
serve it before the expiration of that term exposes the lawsuit
to a dismissal without prejudice.
However, the Court may extend the time for service if the
plaintiff
shows
good
cause
for
the
delay.
The
Court
“must
inquire whether the plaintiff has demonstrated good cause for
his failure to serve within the prescribed 120-day period.” See
Colasante v. Wells Fargo Corporation, 81 Fed. Appx. 611, 612-13
(8th Cir. 2003). Good cause is shown "when some outside factor .
. . rather than inadvertence or negligence, prevented service.”
See
Mann
v.
Castiel,
681
F.3d.
368,
374
(D.C.
Cir.
2012).
However, Courts have established that simple attorney neglect
does
not
constitute
a
basis
for
“good
cause”.
Even
if
the
plaintiff does not demonstrate good cause, the Court may still
CIVIL NO. 10-1931 (JAG)
show
leniency
towards
5
the
plaintiff
900
F.2d.
if
he
or
she
proves
excusable neglect. Id.
In
Floyd
v.
U.S.,
1045
(7th
Cir.
1990),
the
plaintiff failed to serve defendant U.S. within 120 days after
filing the complaint as required by FED. R. CIV. P. 4(m) (then
Rule 4(j)). The plaintiff’s attorney simply stated that his busy
schedule, combined with the unexpected absence of the secretary
responsible
of
delay.
district
The
seeing
that
court
service
dismissed
was
effected,
the
caused
complaint
the
concluding
that that the plaintiff’s attorney did not invoke a legitimate
basis for good cause. The Court of Appeals, affirming the lower
court’s
decision,
established
that
“simple
attorney
neglect,
without the presence of substantial extenuating factors such as
sudden illness or natural disaster, cannot constitute the sole
basis for a ‘good cause’ determination”. See Floyd, 900 F.2d. at
1047.
In
the
present
case,
Plaintiffs’
excuse
for
failure
to
serve the remaining Defendants is insufficient. The fact that
his failure to submit additional summons was “inadvertent” and
“due to a clerical error in the office” does not constitute good
cause
excuse
nor
is
excusable
even
opportunities
to
neglect,
less
as
availing
properly
serve
explained
given
above.
that
Defendants.
Plaintiffs’
they
Thus,
had
the
two
Court
CIVIL NO. 10-1931 (JAG)
6
finds that Plaintiffs have not shown good cause nor excusable
neglect that would justify the granting of their motion.
This conclusion would normally compel the Court to dismiss
the present case, without prejudice, for failure to comply with
FED. R. CIV. P. 4(m). However, the problem here is that this case
continues as to co-defendant Antonio Salva. Therefore, should
Plaintiffs
wish
to
renew
their
case
against
the
dismissed
defendants, a new case should be filed and the filing fee paid.
Then,
sound
litigation
management
would
compel
the
Court
to
consolidate that case with the present one. In the interest of
efficiency, then, the Court will allow Plaintiffs to sidestep
this
procedural
hurdle
and
serve
defendants
in
this
action
(excluding Antonio Salva) anew.
However, the Court will not allow Plaintiffs’ behavior to
go unpunished. Should they wish to continue the case against
those defendants, Plaintiffs shall pay the equivalent amount of
filing a new case, $350.00, in sanctions. Payment of sanctions
is due in 2 weeks from the date of entry of this order. Upon
satisfaction
corresponding
of
this
summons.
amount,
the
Plaintiffs
Clerk
shall
shall
then
issue
have
30
the
days
therefrom to serve summons upon the aforementioned defendants.
CIVIL NO. 10-1931 (JAG)
7
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 24th day of August, 2012.
S/ Jay A. Garcia-Gregory
JAY A. GARCIA-GREGORY
United States District Judge
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