Kills In Sight v. Sutaria et al

Filing 100

ORDER denying 98 Motion for Reconsideration. Signed by Chief Judge Jeffrey L. Viken on 5/5/14. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UMPO KILLS IN SIGHT, As Special
Administrator of the Estate of
CLEVELAND KILLS IN SIGHT,
Deceased,
Plaintiff,
vs.
DR. SHILPA M. SUTARIA, VISTA
STAFFING SOLUTIONS, INC., and
THE UNITED STATES,
Individually, Jointly and Severally,
Defendants.

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CIV. 11-5078-JLV
ORDER

Plaintiff Umpo Kills In Sight, as Special Administrator of the Estate of
Cleveland Kills in Sight, filed a complaint against defendants Dr. Shilpa M.
Sutaria, Vista Staffing Solutions, Inc., and the United States. (Docket 1)
Plaintiff asserted claims against Dr. Sutaria for assault and battery, negligent
infliction of emotional distress, and intentional infliction of emotional distress.
Id. On February 21, 2013, Dr. Sutaria filed a renewed motion for summary
judgment asserting plaintiff’s summons and complaint were improperly served
and plaintiff’s claims are barred by the applicable statutes of limitation.
(Docket 65). On September 26, 2013, the court granted Dr. Sutaria’s motion
for summary judgment on the basis service of process was improper and
untimely. (Docket 97). The court dismissed plaintiff’s claim for assault and
battery with prejudice and dismissed plaintiff’s claims for negligent infliction of

emotional distress and intentional infliction of emotional distress without
prejudice. Id.
On November 18, 2013, plaintiff filed a motion for reconsideration
pursuant to Fed. R. Civ. P. 54(b). (Docket 98). Fed. R. Civ. P. 54(b) states:
When an action presents more than one claim for relief--whether as
a claim, counterclaim, crossclaim, or third-party-claim--or when
multiple parties are involved, the court may direct entry of a final
judgment as to one or more, but fewer than all, claims or parties only
if the court expressly determines that there is no just reason for
delay. Otherwise, any order or other decision, however designated,
that adjudicates fewer than all the claims or the rights and liabilities
of fewer than all of the parties does not end the action as to any of the
claims or parties and may be revised at any time before the entry of
a judgment adjudicating all the claims and all the parties’ rights and
liabilities.
Fed. R. Civ. P. 54(b).
Plaintiff requests the court reconsider its order granting Dr. Sutaria’s
motion for summary judgment and find personal service on Dr. Sutaria was
sufficient and timely served within the three-year statute of limitation. (Docket
99). Specifically, the plaintiff requests the court find Dr. Sutaria was
personally served with both the summons and complaint on July 31, 2012,
and that the service on July 31, 2012, was legally effective. Id.
Federal Rule of Civil Procedure 60 provides the following grounds for
relief from a final judgment or order:
On motion and just terms, the court may relieve a party . . .
from a final judgment, order, or proceeding for the following
reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;

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(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under
Rule 59(b);
(3) fraud . . . , misrepresentation, or misconduct by an
opposing party;
...
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
A district court’s decision on a motion for reconsideration rests within its
discretion. Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir.
1988). “Motions for reconsideration serve a limited function: to correct
manifest errors of law or fact or to present newly discovered evidence.” Id. at
414.
The court’s order on Dr. Sutaria’s renewed motion for summary
judgment sets forth the facts which are incorporated here by reference.
(Docket 97). A brief recitation of those facts is helpful for the court’s analysis.
Plaintiff filed a complaint against defendants on September 30, 2011, and
summonses were issued the same day. (Dockets 1, 4-8). Plaintiff twice
attempted service on Dr. Sutaria through the sheriff in Cook County, Illinois,
but the sheriff never completed service. (Docket 33 at ¶¶ 6-10). In November
2011, plaintiff moved the court for an order extending the time for service on
Dr. Sutaria and allowing service by publication. (Docket 15). While the motion
was pending, plaintiff twice published the summons in the Chicago Tribune in
December 2011. (Docket 47-9). On January 11, 2012, plaintiff attempted
service on Dr. Sutaria in Ohio through the Allen County Sheriff’s Department.
(Docket 22). The proof of service indicated Dr. Sutaria was personally served
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with the summons and complaint. (Docket 22). As a result, the court denied
as moot plaintiff’s motion for an extension of time to serve Dr. Sutaria. (Docket
23). However, it was later learned the January 11, 2012, service was
improperly left at the reception desk at Dr. Sutaria’s place of employment and
was not personally served on Dr. Sutaria. Plaintiff did not, after realizing the
summons and complaint were improperly served on January 11, 2012, move
the court for an extension of time for service on Dr. Sutaria.
On July 31, 2012, plaintiff again attempted service on Dr. Sutaria.
(Docket 56). The proof of service indicates the summons was personally served
on Dr. Sutaria. Id. However, Dr. Sutaria asserted that on July 31, 2012, she
was served with a copy of the complaint but not the summons. (Docket 92).
Although plaintiff had the opportunity to respond to this assertion, plaintiff did
not file a response disputing this claim or otherwise present facts to the
contrary. See Docket 97 at p. 6. Based on these facts, the court found service
of process was insufficient. Id. at p. 7. The court also noted “[e]ven if the court
were to find the summons and complaint were properly served on July 31,
2012, it was more than 300 days after the complaint was filed and the
summons was issued for Dr. Sutaria.” Id. The court found no good cause
existed “to retroactively grant plaintiff an extension of time to properly serve Dr.
Sutaria.” Id.
Plaintiff now takes the position that Dr. Sutaria was personally served
with both the summons and complaint on July 31, 2012, and provided the
court with an affidavit from Deputy Ronald S. Rinto indicating he served “the

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packet of documents” personally on Dr. Sutaria on July 31, 2012. (Dockets 99
& 99-2 at ¶ 6). Plaintiff also attached a copy of the packet of documents sent
to Deputy Rinto which included both the summons and complaint. (Docket
99-1).
As discussed above, “[m]otions for reconsideration serve a limited
function: to correct manifest errors of law or fact or to present newly discovered
evidence.” Hagerman, 839 F.2d at 414. Plaintiff has not presented any new
evidence that was unavailable at the time the court considered the motion for
summary judgment. Plaintiff could have asserted this same position after Dr.
Sutaria claimed she was not served with the summons on July 31, 2012.
Plaintiff failed to do so. Plaintiff does not explain why these facts were not
presented to the court at that time. Plaintiff’s motion for reconsideration does
not rely on newly-discovered evidence.
In addition, even if service was proper on July 31, 2012, it was untimely.
The complaint was filed on September 30, 2011. Under Fed. R. Civ. P. 4(m),
plaintiff had until January 28, 2012, to effect service of process on Dr. Sutaria.
July 31, 2012, was more than 300 days after the complaint was filed and
beyond the time allowed under Rule 4(m). Plaintiff claims the facts of this case
“created an equitable estoppel situation” because the court denied as moot the
motion for extension of time to serve Dr. Sutaria after plaintiff initially believed
Dr. Sutaria was properly served on January 11, 2012. (Docket 99 at p. 4). The
court disagrees. On February 1, 2012, Dr. Sutaria answered the complaint
and indicated she was not properly served with the summons and complaint.

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(Docket 27 at ¶¶ 3-4). Plaintiff was on notice at that time of Dr. Sutaria’s
position and thereafter could have filed a second motion for an extension of
time for service. Plaintiff failed to do so. On March 28, 2012, Dr. Sutaria filed
a motion for summary judgment again asserting the January 11, 2012, service
was improper. Despite being aware of Dr. Sutaria’s claim, plaintiff waited until
July 31, 2012, to serve Dr. Sutaria without requesting an extension of time.
Based on these facts, the court finds “no good cause exists to retroactively
grant plaintiff an extension of time to properly serve Dr. Sutaria.” (Docket 97
at p. 7).
The court finds plaintiff’s motion for reconsideration does not rely on
newly-discovered evidence nor does it bring to light a manifest error of law or
fact in the court’s order. Plaintiff provides no reason which justifies relief from
the court’s previous order. Accordingly, it is hereby
ORDERED that the plaintiff’s motion (Docket 98) is denied.
Dated May 5, 2014.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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