Mullinax v. Batson et al

Filing 23

OPINION and ORDER denying 14 Motion to Dismiss. Signed by Honorable A Marvin Quattlebaum, Jr on 5/30/18.(alew, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Jerry Mullinax,
)
Plaintiff, )
)
vs.
)
Tom Treffinger, Patty Amick, Susan M. )
)
Jones, Matteel Jones, Ross Wagner,
)
Travis Gleaton, and Courtney Stokes,
)
Defendants. )
)
)
_______________________________
)

Civil Action No.: 6:17-cv-01478-AMQ

OPINION AND ORDER

Before this Court is Defendants Tom Treffinger, Patty Amick, Susan M. Jones, Matteel
Jones, Ross Wagner, Travis Gleaton, and Courtney Stokes’s (“Defendants”) Motion to Dismiss
claims against them pursuant to Fed. R. Civ. P. 12(b) (1) and (5) on the grounds that Plaintiff
Jerry Mullinax (“Plaintiff”) failed to serve the Summons and Complaint within the time limit
imposed by Fed. R. Civ. P. 4(m). (ECF No. 14.) The parties’ submissions have been reviewed,
and no hearing is necessary. For the reasons set forth below, the Court DENIES the Motion to
Dismiss.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed this civil rights action on June 6, 2017 against Defendants Paul O. Batson,
III, James W. Blakely, Jr., Jo Watson Hackl, S. Hunter Howard, Jr., Dean Jones, Ray Lattimore,
Ray Martin, Burke Royster, Coleman Shouse, Keith R. Smith, Kenneth Southerlin, and David
Stafford, members of the Greenville Technical College Area Commission, as well as Defendants
Tom Treffinger, Patty Amick, Susan M. Jones, Sharon Bellwood, Ross Wagner and Keith
Miller. (ECF No. 1.) On September 12, 2017, the Court entered a text order directing Plaintiff

to serve Defendants by September 15, 2017, as it appeared Defendants had not yet been served.
(ECF No. 5.) Plaintiff moved the Court for an extension of time until October 4, 2017, in which
to serve Defendants. (ECF No. 7.) That motion was granted on September 14, 2017. (ECF No.
8.) Thereafter, on October 2, 2017, Plaintiff filed “Authorizations to Accept Service of Process”
signed by defendants Treffinger, Amick, Susan M. Jones and Wagner in conjunction with a
“Notice of Service.” (ECF No. 9.) Plaintiff filed his Amended Complaint on October 6, 2017
against Treffinger, Amick, Susan M. Jones, Wagner, as well as new defendants Gleaton, Stokes
and Matteel Jones. (ECF No. 10.) Counsel for Defendants Keith D. Munson accepted service of
the amended complaint for all Defendants on October 6, 2017. (ECF No. 12.)

Thereafter, on

November 20, 2017, Defendants moved to dismiss the claims against them pursuant to Fed. R.
Civ. P. 12(b)(1) and (5) on the grounds that Plaintiff failed to serve the Summons and Complaint
within the time limit imposed by Fed. R. Civ. P. 4(m).
STANDARDS OF REVIEW
A Rule 12(b)(1) motion may be used to attack the existence of subject matter jurisdiction
apart from the pleadings. Materson v. Stokes, 166 F.R.D. 368, 371 (E.D.Va.1996). Under a Rule
12(b)(1) motion, the plaintiff bears the burden of showing that federal jurisdiction is appropriate
when challenged by the defendant. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982).
Additionally, the procedural requirement that summons be properly served must be satisfied
before a federal court may exercise personal jurisdiction over a defendant, thus a motion to
dismiss for insufficient process is permitted by Rule 12(b)(5). Omni Capital Int’l, Ltd. v. Rudolf
Wolff & Co., 484 U.S. 97, 104 (1987); O’Meara v. Waters, 464 F.Supp.2d 474, 476 (D
.Md.2006). The plaintiff bears the burden of establishing that service of process has been
accomplished in a manner that complies with Federal Rule of Civil Procedure 4. Plant Genetic

Systems, N.V. v. Ciba Seeds, 933 F.Supp. 519, 526 (M.D.N.C.1996). Where actual notice is
received, Rule 4 “should be liberally construed to effectuate service and uphold the jurisdiction
of the court.” Karlsson v. Rabinowitz, 318 F.2d 666, 668 (4th Cir.1963).

Nevertheless, “the

rules are there to be followed, and plain requirements for the means of effecting service of
process may not be ignored.” Armco, Inc. v. Penrod-Stauffer Bldg. Systems, Inc., 733 F.2d 1087,
1089 (4th Cir.1984).
ANALYSIS
Defendants argue that this matter should be effectively dismissed as of October 4, 2017,
because, as of that date, none of the defendants had been formally served with the original
complaint. (ECF No. 14 at 6-7.) Plaintiff responds that he considered the original defendants to
have been served as of September 20, 2017, based on the authorizations to accept service
executed by those Defendants and Mr. Munson’s possession of the original complaint, and the
new defendants as of October 11, 2017, when Mr. Munson executed an acceptance of service of
the amended complaint on behalf of the new defendants. (ECF No. 18 at 2-3.)
Federal Rule of Civil Procedure 4(m) requires a plaintiff to serve a defendant within 90
days after the complaint is filed. If the defendant is not timely served, “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.” Fed. R. Civ. P. 4(m). However,
“if the plaintiff shows good cause for the failure, the court must extend the time for service for an
appropriate period.” Id. To show “good cause,” a plaintiff must demonstrate that he made
“‘reasonable, diligent’ efforts to effect service on the defendant.” T &S Rentals v. U.S., 164
F.R.D. 422, 425 (N.D.W.Va. 1996) (internal citation omitted). “Courts typically find good cause
to extend the Rule 4(m) time limit where external factors stifle a plaintiff’s due diligence in

effecting service.” Clyburn v. Champagne, No. 6:10–1925–TMC, 2012 WL 4478971, *5 (D.S.C.
Sept. 28, 2012) (internal quotations and alterations omitted). For example, courts have found
good cause where “the defendant was evading service; the plaintiff experienced difficulty in
obtaining defendant’s proper address; the plaintiff was misdirected by court personnel as to
proper procedure; or a defect in the attempted service was not revealed by the defendant until
after the time expired.” Perri-Clair v. Ace P’ship of Charleston SC, No. 2:09–CV–1584–MBS,
2011 WL 765671, *2 (D.S.C. Feb.23, 2011)(internal citation and quotations omitted).
In an unpublished decision, the Fourth Circuit has held that “[e]ven if a plaintiff does not
establish good cause, the district court may in its discretion grant an extension of time for
service. Giacomo-Tano v. Levine, 199 F.3d 1327, *1 (4th Cir. 1999) (unpublished opinion); see
also Fed. R. Civ. P. 4(m) advisory committee’s notes (1993) (“[Rule 4(m) ] explicitly provides
that the court shall allow additional time if there is good cause for the plaintiff’s failure to effect
service in the prescribed 120 days, and authorizes the court to relieve a plaintiff of the
consequences of an application of this subdivision even if there is no good cause shown.”);
Henderson v. United States, 517 U.S. 654, 663 (1996) (“Most recently, in 1993 amendments to
the Rules, courts have been accorded discretion to enlarge the 120–day period ‘even if there is no
good cause shown’”); cf. Mendez v. Elliott, 45 F.3d 75 (4th Cir. 1995)(analyzing Rule 4(m) in
the same manner as predecessor Rule 4(j) as it relates to the district court’s discretion where no
good cause is shown).
In light of Plaintiff’s representations, the Court finds that sufficient good cause did exist
to warrant any delay in service beyond the time frame prescribed by Rule 4(m) as to the original
defendants.

The Court notes that there is no evidence that the delay caused prejudice to

Defendants. Further, as it relates to newly added defendants, the time to serve those defendants

runs from the filing of the new complaint. See generally McGuckin v. United States, 918 F.2d
811, 813 (9th Cir. 1990) (holding that time to serve defendants added in the new complaint runs
from filing of new complaint); see also Rullan v. Goden, No. CCB-12-2412, 2016 WL 1159112,
at *9 (D. Md. Mar. 24, 2016)(noting that the time limit for service provided by Rule 4(m) is not
restarted by the filing of an amended complaint except as to those defendants newly added in the
amended complaint); Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
1137 (4th ed.)(adding a new party through an amended complaint initiates a new timetable).
Of note, Mr. Munson accepted service of the Amended Complaint on behalf of the new
defendants Matteel Jones, Travis Gleaton, Courtney Stokes, as well as Treffinger, Amick, Susan
M. Jones, and Ross Wagner on October 11, 2017. (ECF No. 12.) As a result, the sufficiency of
the “Authorizations to Accept Service of Process” is of little consequence. Further, no prejudice
would result to any Defendants who have all been served with the operative complaint.
Furthermore, a dismissal without prejudice at this stage of the litigation would not serve in the
interests of judicial economy. Indeed, the Fourth Circuit has noted the “policy of deciding cases
on their merits is so strong that, when a plaintiff has committed a procedural error, we will allow
a district court to impose on him the harsh sanction of prejudicial dismissal…only in the extreme
cases.” Choice Hotels Int’l, Inc. v. Goodwin & Boone, 11 F.3d 469, 472 (4th Cir. 1993) (internal
citations and quotations omitted). With these principles in view, Defendants’ Motion to Dismiss
is denied. A Scheduling Order will be issued promptly in this case.
CONCLUSION
For the reasons stated above, Defendants’ Motion to Dismiss (ECF No. 14) pursuant to
Rule 12(b)(1) and Rule 12(b)(5) is DENIED.
IT IS SO ORDERED.

/s/ A. Marvin Quattlebaum, Jr.
United States District Judge
May 30, 2018
Greenville, South Carolina