Hernandez v. USF Reddaway
Filing
16
MEMORANDUM DECISION denying 2 Motion to Dismiss. Plaintiff is ordered to properly effect service no later than September 3, 2013. Failure to do so will result in his case being dismissed without prejudice. Signed by Magistrate Judge Paul M. Warner on 08/16/2013. (asp)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
JOSE HERNANDEZ,
MEMORANDUM DECISION AND
ORDER
Plaintiff,
v.
Case No. 2:12cv475
USF REDDAWAY,
Defendant.
Magistrate Judge Paul M. Warner
On October 15, 2012, all parties consented to having United States Magistrate Judge Paul
M. Warner conduct all proceedings in the case, including entry of final judgment, with appeal to
the United States Court of Appeals for the Tenth Circuit.1 See 28 U.S.C. § 636(c); Fed. R. Civ.
P. 73. Before the court is USF Reddaway’s (“Defendant”) motion to dismiss for Jose
Hernandez’s (“Plaintiff”) failure to effect service of process within 120 days of filing his
complaint.2 The court has carefully reviewed the memoranda submitted by the parties. Pursuant
to civil rule 7-1(f) of the United States District Court for the District of Utah Rules of Practice,
the court elects to determine the motion on the basis of the written memoranda and finds that oral
argument would not be helpful or necessary. See DUCivR 7-1(f).
1
See docket no. 15.
2
See docket no. 2.
I. BACKGROUND
Defendant asserts that this case should be dismissed without prejudice because Plaintiff
did not effect service within 120 days of filing his complaint, and when Plaintiff finally
attempted to effect service, he did not serve the proper agents. Plaintiff filed this action on May
14, 2012. However, he did not attempt to effect service until September 17, 2012, which was
one week after the 120-day time period. Plaintiff attempted to effect service by sending certified
mail to two locations. However, instead of properly serving either an officer of Defendant or
Defendant’s registered agent, CP Corporation, Plaintiff sent service to two individuals who did
not have authority to accept service. Specifically, Plaintiff attempted service by mail to an
employee of Defendant and an attorney in Ohio. This attempt came after Defendant had already
filed its motion to dismiss.
II. DISCUSSION
Under the Federal Rules of Civil Procedure, service of a corporation, partnership, or
association is effected, inter alia, “by delivering a copy of the summons and of the complaint to
an officer, a managing or general agent, or any other agent authorized by appointment or by law
to receive service of process.” Fed. R. Civ. P. 4(h)(l)(B). However, “[i]f a defendant is not
served within 120 days after the complaint is filed” the court must grant an extension of time to
do so if the plaintiff shows “good cause for the failure.” Fed. R. Civ. P. 4(m). Where a plaintiff
does not show good cause, a “court must still consider whether a permissive extension of time
may be warranted.” Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995); see Fed. R.
Civ. P. 4(m).
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In the instant matter, this court concludes that Plaintiff did not properly effect service.
Plaintiff did not serve the summons and complaint within the 120-day period and he did not
serve the proper person. Instead of serving an officer or registered agent of Defendant, Plaintiff
merely mailed service to Defendant’s business address. This is not sufficient under rule 4(h).
The court will now address whether Plaintiff has good cause for his delay in effecting
service. Plaintiff did not respond to Defendant’s motion and has not provided any argument to
show good cause for his failure to effect service in a timely manner. Instead, Plaintiff submitted
his Certificate of Service. This fails to demonstrate any cause for the delay, much less good
cause. Accordingly, the court finds that Plaintiff has not shown good cause to for failing to
timely serve Defendant.
However, as noted earlier, absent good cause, the court still has discretion to direct that
service “be made within a specified time.” Fed. R. Civ. P. 4(m). In determining whether to
grant a permissive extension, courts generally consider factors such as (1) expiration of the
statutes of limitations for a plaintiff’s claims; (2) a plaintiff’s efforts to properly effect service;
(3) notice to the defendant of the lawsuit; (4) prejudice to the defendant; and (5) the complexity
of the federal rules, especially when a plaintiff is proceeding pro se. See Espinoza, 52 F.3d at
840-42; McClellan v. Bd of Cnty. Comm’rs. of Tulsa Cnty., 261 F.R.D. 595,604-05 (N.D. Okla.
2009).
Here, these factors are persuasive to grant Plaintiff a brief extension to properly effect
service. Plaintiff did attempt service by mail, albeit incorrectly. Defendant has notice of the
lawsuit, both from the complaint and the attempted service. Additionally, there does not appear
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to be any prejudice to Defendant by permitting Plaintiff to have an extension of time to effect
service. Finally, the complexity of the rules of civil procedure militates in favor of granting an
extension.
Although “[a] prose litigant is still obligated to follow the requirements” of rule 4 of the
Federal Rules of Civil Procedure, courts have permitted pro se litigants to have a permissive
extension because of the complexity of the rules. See Espinoza, 52 F.3d at 841 (citation
omitted). Because Plaintiff is proceeding pro se, the complexity of rule 4(h) may have hindered
his ability to properly serve Defendant. While Plaintiff has failed to show good cause for his
delay in effecting service, the court nevertheless concludes the factors persuade in favor of
granting a permissive extension of time to serve Defendant. Accordingly, Defendant’s motion to
dismiss is DENIED.
III. CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Defendant’s motion to
dismiss is DENIED. Plaintiff is ordered to properly effect service no later than September 3,
2013. Failure to do so will result in his case being dismissed without prejudice.
IT IS SO ORDERED.
DATED this 16th day of August, 2013.
BY THE COURT:
PAUL M. WARNER
United States Magistrate Judge
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