Klinker v. Furdiga et al

Filing 44

ENTRY ORDER denying Defendants' 27 RENEWED MOTION to Dismiss and/or MOTION for Reconsideration of August 9, 2012 Order Granting Motion to Extend Time . Signed by Chief Judge Christina Reiss on 4/19/2013. (pac)

UNITED STATES DISTRICT COURT
FOR THE

DISTRICT OF VERMONT

ZACHARY KLINKER,

2013 APR 19 PM 1:05

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Plaintiff,

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v.

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Case No. 5:12-cv-254

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LEON FURDIGA and KATHERINE
SCANLAN,

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Defendants.

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ENTRY ORDER DENYING DEFENDANTS'
MOTION TO DISMISS
(Doc. 27)

This matter comes before the court on Defendants Leon Furdiga's and Katherine
Scanlan's Renewed Motion to Dismiss and/or to Reconsider the District of New
Hampshire's August 9, 2012 Order Granting Plaintiffs Motion to Extend Time. (Doc.
27.) Defendants contend that the present action, which was initiated in the District of
New Hampshire, was not properly served within the 120 days afforded by Fed. R. Civ. P.
4(m) and must therefore be dismissed. The District of New Hampshire denied
Defendants' motion to dismiss without prejudice before transferring the case to the
District of Vermont. Defendants seek to renew their motion to dismiss, or alternatively,
for this court to reconsider an earlier ruling by the District of New Hampshire that
extended the original time for service. Plaintiff opposes the motion, arguing that this
court should exercise its discretion to extend the time for service under Rule 4(m) and
thus should decline to dismiss the case. (Doc. 41.)
The court heard oral argument on February 28,2013, and the parties completed
their briefing on March 7,2013. Plaintiff is represented by Michael F. Walsh, Esq. and
Stephen L. Fine, Esq. Defendants are represented by Andrew C. Boxer, Esq. and Joseph
J. Sluka, Esq.

I.

Factual and Procedural Background.
Plaintiff asserts a personal injury claim against Defendants arising out of a January

13,2009 incident on Defendants' property. Plaintiff filed the present Complaint on
January 11,2012, in the District of New Hampshire, two days before the three-year
statute of limitations purportedly expired. I Plaintiff asserts that Attorney Walsh was
prepared to file the Complaint earlier, but was delayed due to a personal tragedy in his
immediate family. There is no dispute that Attorney Walsh suffered a personal tragedy in
December 2011.
Under Fed. R. Civ. P. 4(m), Plaintiff had until May 11,2012 to serve Defendants.
Plaintiff alleges that "Plaintiff's counsel was advised that service would be mailed by the
clerk's office with a copy of the Complaint and Summons ... [and] with the waiver of
service" and that it would also "request[] the waiver be signed and returned to the clerk's
office." (Doc. 41 at 1.) The District of New Hampshire rejected the proposition that its
Clerk's Office assured Plaintiff's counsel that it would effect service on Plaintiff's
behalf.2 On January 26,2012, the Clerk's Office mailed to Attorney Walsh, among other
items, a copy of the summons and "Waiver Issued," and the Clerk's Office noted in a
separate entry "Waiver(s) Issued by Mail as to Leon Furdiga, Katherine Scanlan." (Doc.
6.)

On May 10,2012, the day before Rule 4(m) required Plaintiffto serve Defendants,
Attorney Walsh emailed Attorney Boxer, in response to an inquiry from Attorney Boxer
who announced that there was "an understanding" that he would be representing
Defendants. (Doc. 41 at 2.) Attorney Walsh's May 10 email informed Attorney Boxer

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The court makes no finding of when the statute of limitations expired.

In ruling on Defendant's first motion to dismiss (Doc. 17.), the District of New Hampshire
noted that the Clerk's Office was "maintaining as forcefully as [P]lainti:fI's counsel" that "no one
ever told [P]lainti:fI's counsel that they would mail the forms, that they gave him the proper
forms and he was to mail them." (Hearing Transcript "Tr." at 10-11.) The court, however,
accepted that both counsel and the Clerk's Office had "advanc[ed] their version in good faith,"
even though the court further concluded that counsel's belief that the Clerk's Office would effect
service was "an error of counsel." Id at 11.

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"of the Summons, Complaint and voluntary waiver of service" and "contained the
Complaint, Civil Action Cover sheet and photos of the accident." ld.
In the months following the expiration of the original 120-day time limit under
Rule 4(m), Attorney Walsh allegedly attempted to contact Attorney Boxer to address
whether Defendants waived service and when Defendants would be filing an answer. In
an email dated July 19,2012, Attorney Walsh informed Attorney Boxer that he had
repeatedly called and emailed him without receiving a response and would therefore seek
recourse with the court if Attorney Boxer did not reply. (Doc. 41-3 at 1.) On July 20,
2012, Attorney Boxer responded that he was out of the office and would be available
later in the week. ld. On August 3,2012, Attorney Walsh again em ailed Attorney
Boxer, referencing a series of missed calls and inquiring as to whether he would accept
service and when Defendants would be filing an answer. (Doc. 41-4 at 1.) On August 5,
2012, Attorney Boxer responded that he was not authorized to accept service on behalf of
Defendants and that he would not be filing an answer. Id.
Following the May 11 deadline, Attorney Walsh was also in contact with the
District of New Hampshire regarding an extension for service. In a June 25,2012 Order,
the District of New Hampshire sua sponte ordered Plaintiff to file a return of service or
move to extend the time to comply with Rule 4(m). On June 29,2012, Plaintiff moved
for a sixty-day extension of time, arguing that he had mailed waiver of service forms to
Defendants pursuant to Rule 4(d)( 1) but that they had not yet responded. The court
granted the motion to extend the time to serve until August 29,2012, which Plaintiff met
by serving Defendants on August 26,2012.
Defendants do not dispute that Plaintiff served Defendants on August 26, 2012, in
compliance with the District of New Hampshire's Order extending the time for service.
(Doc. 27 at 1.) Defendants, however, point out that they were never served during the
original 120 days allowed under Rule 4(m), and that they never received "any request,
either written or oral, from Plaintiff requesting that they waive service of process or
inquiring about any waivers of service he may have attempted to send." ld. Indeed, both
Defendants aver that neither received "any other written or oral communication from
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Attorney Walsh, either in person or by mail" from July 26, 2011 to August 26,2012.
(Doc. 27-1 at 1; Doc. 27-2 at 1.) Defendants allege that "the only communication
Plaintiff's attorney had with Defendants prior to serving them" was a letter from
Plaintiff's counsel dated July 26,2011. (Doc. 27 at 2.) This letter stated that Attorney
Walsh "represents Zachary Klinker regarding injuries he sustained [at Defendants' home]
on January 13,2009" and requested that Defendants send this "claim letter" to their
homeowners' insurer "for further handling." Id.
After being served in August, Defendants moved the District of New Hampshire
to dismiss under Fed. R. Civ. P. 12(b)(5), arguing that Plaintiff did not have good cause
for failing to serve them before May 11,2012. (Doc. 17 at 1.) At a hearing on
November 14, 2012, the District of New Hampshire agreed that Plaintiff had not shown
good cause for the failure. The court, however, exercised its discretion under Rule 4(m)
and denied the motion to dismiss without prejudice to Defendants renewing their motion
in this court. The court then transferred the case to the District of Vermont, and
Defendants renewed their motion to dismiss.

II.

Conclusions of Law and Analysis.
Under Fed. R. Civ. P. 4(m):
If a defendant is not served within 120 days after the complaint is filed, 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. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate period.

Id. The Second Circuit has held that while "neglect" is not a basis for good cause,
Zapata v. City o/New York, 502 F.3d 192, 198 (2d Cir. 2007), a district court has
discretion to extend the time for service even absent good cause. Id. at 197; see also

Gerena v. Korb, 617 F.3d 197,201 (2d Cir. 2010) (interpreting Rule 4(m) "to give wide
latitude to courts in deciding when to grant extensions on time to serve, including
permitting courts to grant extensions even absent good cause"). In Zapata, the court held
that the determination of whether to extend time without good cause "involve[s] a
weighing of overlapping equitable considerations[,r and in exercising its discretion
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when "good cause is lacking," a district court should "weigh[] the impact that a dismissal
or extension would have on the parties." Zapata, 502 F.3d at 197. Factors to consider
are whether a plaintiffhas "advance[d] some colorable excuse for neglect," the length of
time the plaintiff waited to effect service or seek an extension, prejudice to the plaintiff
"by having the complaint dismissed with prejudice on technical grounds" when the
statute of limitations has expired, and prejudice to the defendant by having to defend an
otherwise time-barred action, "especially if the defendant had no actual notice of the
existence of the complaint until the service period had expired." ld. at 198.
Here, Defendants contend that Plaintiff has not shown good cause "because there
is a disconnect between Plaintiffs counsel's tragedy [in December 2011] and the failure
to serve Defendants" until August 2012. 3 (Doc. 27 at 2.) Plaintiff does not explicitly
concede that he has not shown good cause. Rather, he argues that he has advanced a
colorable excuse for neglect based on his counsel's "unfortunate family tragedy" that
''''caused confusion with respect to service of the complaint and return ofthe waiver."
(Doc. 41 at 3.) The parties advanced the same arguments in defending and objecting to
Defendants' first motion to dismiss, and the District of New Hampshire concluded
Plaintiff had not shown good cause. This court likewise concludes that Plaintiff has not
demonstrated good cause for his failure to serve Defendants within the 120-day period
mandated by Rule 4(m).

Relying on Johnson v. New York City Board ofEducation, 23 F. App'x 70, 72 (2d Cir. 2001),
Defendants also argue that attorney neglect is not good cause to excuse Plaintiff s failure to
serve. (Doc. 27 at 4,5.) Johnson relies on McGregor v. United States, 933 F.2d 156, 159-60
(2d. Cir. 1991), for this proposition. McGregor pre-dated the 1993 Amendments to Rule 4 and
the Second Circuit's decision in Zapata that expressly held "that district courts have discretion to
grant extensions even in the absence of good cause." Zapata, 502 F.3d at 195-96 ("Before the
1993 Amendments, we generally did not approve an extension absent a showing of good cause,
even when a statute oflimitations would bar the re-filed action and effectively convert the
dismissal without prejudice under Rule 4(m) into a dismissal with prejudice."); see also
Goldblatt v. Nat 'I Credit Union Admin., 2012 WL 5458082, at *1 (2d Cir. Nov. 9, 2012) (noting
Zapata "superseded" McGregor). As a result, attorney neglect may not necessarily constitute
good cause, but a plaintiff could, pursuant to Zapata, still advance a colorable excuse for that
neglect.

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In addressing Defendants' renewed motion to dismiss, the court is tasked with
weighing overlapping equitable considerations, including prejudice to each party. While
the Second Circuit has declined to adopt a per se rule governing the parties' relative
prejudice when the suit is otherwise time~barred, "[i]t is obvious that any defendant
would be harmed by a generous extension of the service period beyond the limitations
period for the action, ... and it is equally obvious that any plaintiff would suffer by
having the complaint dismissed with prejudice on technical grounds." Zapata, 502 F.3d
at 198. The fact that a plaintiffwill suffer prejudice "is no less true where the technical
default was the result of pure neglect on the plaintiffs part." fd. In the present case, the
statute of limitations purportedly expired on January 13,2012, so the prejudice to
Plaintiff if his complaint is dismissed on technical grounds will be great.
If Plaintiffs complaint is not dismissed, Defendants will suffer the prejudice of

having to defend an otherwise time~barred action. Defendants, however, were on notice
of the existence of Plaintiffs complaint as early as May 10,2012, and thereafter refused
to accept service. 4 Cf Zapata, 502 F.3d at 198-99 (finding prejudice when defendant had
no notice "that the action was forthcoming [or] already pending"). Attorney Walsh's
May 10,2012 email included not only the complaint, civil cover sheet, and photographs,
but also informed Attorney Boxer that the District of New Hampshire mailed to
Defendants the complaint with waiver of service forms, which had not been returned to
date. While notice of the complaint is not sufficient to bar dismissal for insufficient
service, see Martin v. NY.S. Dep't ofMental Hygiene, 588 F.2d 371,373 (2d Cir. 1978),
it mitigates the prejudice Defendants will suffer if Plaintiff is granted an extension of
time to serve Defendants. Defendants here will neither be forced to defend a suit of
which they had no notice until service, see Zapata, 502 F.3d at 198-99, nor will they be
thrust into the midst of a suit that has already proceeded for some time. 5 See McGee v.
Attorney Boxer's representation to Attorney Walsh that he would be representing Defendants
implies that Defendants knew that a suit was pending.

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5 During oral argument before the District ofNew Hampshire, the court queried whether
Defendants had "any evidence to suggest" prejudice, such as witness unavailability or lost

6

Pallito, 2011 WL 7657585, at *2 (D. Vt. Dec. 20,2011) (concluding prejudice to

defendant minimal when the "case [was] still in the earliest stages, ... [n]o answers ha[d]
been filed, and there ha[ d] been no discovery"); Chandler v. Fontaine, 2008 WL
4642251, at *2-3 (D. Vt. Oct. 15,2008) (concluding defendants had not demonstrated
prejudice when defendants had notice, "retained counsel, and once served [would] be
able to participate in all aspects of the case"). Indeed, in their respective affidavits, both
Defendants aver that they never received any written or oral communications from
Attorney Walsh, but neither Defendant claims he or she was without knowledge of
Plaintiffs suit. (See Doc. 27-1 at 1; Doc. 27-2 at 1.) Additionally, Defendants were not
without knowledge of Plaintiffs injury and his allegation that he was injured while
working at Defendants' property, as Defendants acknowledge that they received the July
26,2011 "claim letter" from Attorney Walsh requesting that Defendants send the claim
letter to their insurance company. The court thus concludes that consideration of the
impact on the parties of a dismissal or an extension weighs in favor of Plaintiff and also
weighs in favor of an extension of time to effect service.
Moreover, Plaintiff has advanced a colorable excuse for neglect by pointing out
that, in the intervening months between filing the complaint and serving Defendants,
Plaintiffs counsel proceeded on the assumption that Defendants would be waiving
service in compliance with the Federal Rules of Civil Procedure. 6 (Doc. 41-2; 41-3.)
evidence, and Defendants admitted they could not identify "any evidence" of prejudice
Defendants suffered from the approximate three-month delay in service. (Tr. at 11-12.) The
District of New Hampshire noted that Defendants pointed only to delay, but the court concluded
this was insufficient to show prejudice since the case was only "[a] couple months older than it
would have been if [Plaintiff] hadn't been given this extension." Id.
6 There is no basis under the Federal Rules of Civil Procedure for Attorney Walsh's belief that
the Clerk's Office would undertake service on Plaintiff's behalf. See Fed. R. Civ. P. 4(c)(I)
("The plaintiff is responsible for having the summons and complaint served within the time
allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.").
However implausible or unlikely Attorney Walsh's allegations may be, it was the attorney's
"misunderstanding of the governing procedural rules," and courts are generally '''loath to throw
plaintiff out of court because ofan attorney's defection.'" Lee Family v. Int'/ Paper Co., 2010
WL 2949635, at *3 (D. Vt. July 23,2010) (quoting McIntosh v. Covenant House, 2007 WL
1946540, at *8 (S.D.N.Y. June 28, 2007».

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Pursuant to Fed. R. Civ. P. 4(d), a defendant "has a duty to avoid unnecessary expenses
of serving the summons[,]" and a defendant located in the United States is required to
waive service. Fed. R. Civ. P. 4(d)(2) (providing that, absent a showing of good cause
for failure to waive, a defendant must pay both the expenses incurred in making service
and the reasonable expenses associated with collecting any service expenses). Here,
Defendants were obligated under Rule 4( d)(2) to waive service, and Defendants have
advanced no good cause for refusing service.
Attorney Walsh attempted to effect service by communicating with Attorney
Boxer. Attorney Walsh first contacted Attorney Boxer as the period to serve Defendants
drew to a close, sending him the complaint prior to the expiration of the 120-day-period.
After May 11,2012, Attorney Walsh alleges that he repeatedly attempted to contact
Attorney Boxer to confirm whether Defendants waived service and when Defendants
planned to file an answer. Attorney Walsh's emails and phone calls apparently went
unanswered, except for a July 20 email stating that Attorney Boxer was busy and an
August 5 email stating that Attorney Boxer was not authorized to accept service on behalf
of Defendants and that he would not be filing an answer. After receiving the later email,
Defendants were served within the same month. Throughout this period, Attorney Walsh
relied on the parties' continuing communication regarding the action in believing that
service would be completed, and he made a good faith attempt to resolve the delay in
service without involving the court.
While Plaintiff attempted to resolve the delay with opposing counsel instead of the
court, Plaintiff also responded to the District of New Hampshire's June 25, 2012 Order,
by filing on June 29, 2012 a motion to extend the time to serve Defendants until August
29,2012. Once the court granted the motion to extend time, Plaintiff complied with the
court's order by serving Defendants on August 26,2012. Cf Chandler v. Cent. Vt. Pub.

Servo Corp., 2012 WL 966491, at *3 (D. Vt. Mar. 21, 2012) (denying additional time to
serve because plaintiff had been granted previously one extension of time and had been
alerted to deficiencies with plaintiff s prior attempts to serve but had "not made any effort
to cure the alleged deficiencies"); Madden v. Town a/New Haven, 2008 WL 2483295, at
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*2-3 (D. Vt. June 17,2008) (concluding dismissal was appropriate when plaintiff "was
aware of a potential defect in service early on, but made no effort to remedy the defect").
A remaining consideration is the length of time Plaintiff waited to effect service or
seek an extension. Zapata, 502 F .3d at 199. As Defendants have noted, Plaintiff did not
move for an extension of service until the District of New Hampshire ordered him to do
so forty-five days after the May 11,2012 deadline had passed, and did not eventually
serve Defendants until 107 days after the original time for service had expired. Plaintiffs
delay in this case, however, does not warrant the harshest sanction of dismissal,
especially when Defendants could have curtailed the delay by accepting service. See
Arndt v. Napolitano, 495 F. App'x 178, 180-81 (2d Cir. 2012) (affirming dismissal when
plaintiff was informed several times over the course of four months that a defendant had
not been served, but plaintiff waited another eight months before moving for an extension
of time, which was twenty-two months after plaintiff filed suit); Dicks v. Chow, 382 F.
App'x 28,30 (2d Cir. 2010) (affirming dismissal when, over a year after plaintiff filed an
amended complaint, district court provided notice that "unserved defendants would be
dismissed" and plaintiff never asserted any justification for the failure to serve).
The court therefore finds that a balancing of the equities weighs against dismissal,
and Defendants' motion is DENIED.

CONCLUSION
F or the reasons stated above, the court hereby DENIES Defendants' Motion to
Dismiss and/or to Reconsider the District of New Hampshire's August 9,2012 Order
Granting Plaintiffs Motion to Extend Time. (Doc. 27.)
SO ORDERED.
.it-­

Dated at Rutland, in the District of Vermont, this ~ day of April, 2013.

lsi Christina Reiss
Christina Reiss, Chief Judge
United States District Court

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