Smith v. Timothy et al

Filing 36

MEMORANDUM DECISION and ORDER denying 8 Motion for Entry of Default; granting 13 Motion to Dismiss Party; granting 14 Motion to Dismiss; denying as moot 26 Motion to Strike; denying as moot 27 Motion to Dismiss. Utah Litigation Center, Victor Sipos and Monica Timothy terminated. Signed by Judge Ted Stewart on 9/23/2014. (blh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
KRISTI SMITH,

MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS PURSUANT TO
RULE 4(m)

Plaintiff,
v.
MONICA TIMOTHY, aka MONICA
BARRIGER, VICTOR SIPOS, DANIEL
WOODS, UTAH LITIGATION CENTER,

Case No. 2:14-CV-236 TS

Defendants.

District Judge Ted Stewart

This matter is before the Court on Defendant Monica Timothy’s Motion to Dismiss
Pursuant to Rule 4(m) and Defendants Victor Sipos and Utah Litigation Center’s Motion to
Dismiss Pursuant to Rule 4(m). As explained more fully below, the Court will grant Defendants’
Motions.
Plaintiff filed her Complaint on March 28, 2014. 1 Service was not effectuated on any
Defendant on or before July 26, 2014. 2
Federal Rule of Civil Procedure 4(m) states
If a defendant is not served within 120 days after the complaint is filed, the
court . . . must dismiss the action without prejudice against that defendant or order
that service be made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for service for an appropriate
period.
Good cause for an extension requires more than a showing of excusable neglect. 3
Specifically, mistake of counsel or ignorance of the rules is insufficient to show good cause. 4
1

Docket No. 2.

2

Docket No. 13.

1

Plaintiff argues that her belief, although incorrect, that summonses were served constitutes good
cause. 5 Plaintiff cannot in good faith claim that she believed summonses were served properly
because Plaintiff did not request the Clerk of the Court to issue summonses until after the 120
day time period had expired. 6 Therefore, the Court will not extend the time period for service
based on good cause.
Rule 4(m) also provides the Court with discretion to extend the period for service even
without a showing of good cause. 7 In determining whether to exercise its discretion, the Court
considers whether the applicable statute of limitations would prevent plaintiff from refiling,
whether defendant has evaded plaintiff’s attempt to perfect service, or whether the defendant has
been prejudiced. 8 As these situations are not applicable, the Court will not extend the period for
service. Because service was not proper and will not be extended, Plaintiff’s Motion for Default
will be denied.
It is therefore
ORDERED that Defendant Monica Timothy’s Motion to Dismiss Pursuant to Rule 4(m)
(Docket No. 13) and Defendants Victor Sipos and Utah Litigation Center’s Motion to Dismiss
pursuant to Rule 4(m) (Docket No. 14) are GRANTED. Plaintiff’s Complaint against Monica
Timothy, Victor Sipos, and Utah Litigation Center is dismissed without prejudice. Plaintiff’s
Motion for Default Judgment (Docket No. 8) is DENIED.
3

In re Kirkland, 86 F.3d 172, 175 (10th Cir. 1996).

4

Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436, 1438-39 (10th Cir. 1994).

5

Docket No. 15.

6

See Docket Nos. 9-12.

7

Espinoza v. United States, 52 F.3d 838, 840-841 (10th Cir. 1995).

8

Id.

2

It is further
ORDERED that the remaining motions (Docket Nos. 26 and 27) are DENIED as moot.
DATED this 23rd day of September, 2014.
BY THE COURT:

Ted Stewart
United States District Judge

3