Wallace v. Community Radiology, et al.
Filing
30
MEMORANDUM OPINION AND ORDER granting Plaintiff's 13 MOTION for Enlargement of Time to effect service. Plaintiff has until 10/31/2011 to serve the remaining defendants. Signed by Judge David A. Faber on 9/30/2011. (cc: counsel of record) (mjp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BLUEFIELD
JACQUELINE WALLACE,
Plaintiff,
v.
CIVIL ACTION No. 1:09-0511
COMMUNITY RADIOLOGY, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff’s Motion for Enlargement of
Time for Service or Alternate Relief (Document No. 13.), filed on
February 23, 2010.
For reasons more fully set forth below, the
Court GRANTS Plaintiff’s Motion.
I. Factual and Procedural Background.
This civil action was originally filed in the Circuit Court
of McDowell County, West Virginia, on March 10, 2009, and
summonses were issued on that date. (Document No. 1 at Exhibits 1
and 2.) Plaintiff alleges in her Complaint that Defendants
incorrectly read her mammogram report and failed to diagnose her
with breast cancer. (Document No. 1 at Exhibit 1.) Defendants
removed the case to this Court, on the basis of diversity
jurisdiction, on May 11, 2009. (Document No. 1.) Plaintiff filed
her objections to removal on May 22, 2009, which this Court
construed as a Motion to Remand. (Document No. 6.) On June 12,
2009, while her Motion to Remand remained pending, Plaintiff
filed in the Circuit Court of McDowell County, her Motion to
Extend Time for Service of Complaint respecting Defendants
Stephen Raskin, M.D., and Valery P. Sobczynski, M.D. (Document
No. 13 at Exhibit A.) By Memorandum Opinion and Order entered on
October 7 and 8, 2009, respectively, this Court denied
Plaintiff’s Motion to Remand and dismissed Gary W. Wright as a
Defendant pursuant to Plaintiff’s Motion. (Document Nos. 9 and
10.)
On February 23, 2010, which was 350 days after she filed her
Complaint, Plaintiff filed the instant Motion for Enlargement of
Time for Service or Alternate Relief. (Document No. 13.)
Plaintiff’s counsel, Eric M. Francis, avers that he did not
request an extension of time prior to the running of the 120 day
service period because he was unsure whether this Court had
jurisdiction and that he did not want to concede jurisdiction by
making such a request. (Id. at 1, n. 4.)
Dr. Raskin.
Regarding Dr. Raskin, Plaintiff asserts that he was served
with notice of possible litigation pursuant to the West Virginia
Medical Malpractice Act on or about February 5, 2009. (Document
No. 1 at Exhibit C.) To serve the Complaint and Summons,
Plaintiff hired a process server, Robert W. Carter. (Document No.
1 at Exhibit C.) Mr. Carter first attempted to serve Dr. Raskin
at his residence, 2000 Leatherwood Lane, Bluefield, Virginia, the
same address upon which he previously had served the demand
2
packet. (Id.) Unable to locate Dr. Raskin’s residential address,
Mr. Carter next attempted service on him at Bluefield Regional
Medical Center, his place of employment. (Id.) On or about April
20, 2009, Mr. Carter telephoned Dr. Raskin at the hospital but
was advised by a woman employed in his office that Dr. Raskin
would be in Israel until the middle of May. (Id.) Due to hospital
policy prohibiting private process servers from effecting service
on hospital grounds unless service was connected directly with
hospital matters, Mr. Carter was unable to effect service at Dr.
Raskin’s place of employment. (Id.) Consequently, Mr. Carter
waited until Dr. Raskin returned from Israel and on May 15, 2009,
he telephoned Dr. Raskin at his office. (Id.) Mr. Carter advised
Dr. Raskin that he had a summons for him, that he was unable to
locate a residential address for him, and asked where he could
meet him to effect service. (Id.) Mr. Carter asserts that Dr.
Raskin hung up the phone. (Id.)
Finally, on June 2, 2009, Mr. Carter delivered the Summons
and Complaint to the Mercer County Sheriff’s Department, along
with a $25.00 fee, and requested that the Sheriff’s process
server deliver the documents to Dr. Raskin. (Id.) Plaintiff
attempted to effectuate service by publication in the Bluefield
Daily Telegraph on July 10 and 17, 2009. (Document No. 1, Exhibit
D.) Despite Plaintiff’s attempts, Dr. Raskin was never served the
Summons or Complaint.
3
Dr. Sobczynski.
Plaintiff first attempted to effectuate service of Dr.
Sobczynski by sending the Summons and Complaint to the address at
which a demand packet was served on or about February 6, 2009.
(Document No. 1 at 3 and Exhibit A at 8.) Plaintiff thereafter
discovered that Dr. Sobczynski was residing in the state of
Tennessee. (Id.) Mr. Francis hired a process server in Tennessee,
Mr. Terry Costner, who was unable to effectuate service.1 (Id.)
Plaintiff attempted service by publication in the Citizen Tribune
in Morristown, Tennessee, on July 3 and 10, 2009. (Document No. 1
at Exhibit E.) On March 6, 2009, Jace Goins, Esquire, of Steptoe
& Johnson, PLLC, notified Mr. Francis via email that he
represented Dr. Sobczynski but was not able to accept service of
the Complaint on his behalf. (Document No. 1, Exhibit A at 10.)
By Memorandum Opinion and Order entered April 15, 2010,
Plaintiff’s Motion (Document No. 13.), was referred to United
States Magistrate Judge R. Clarke VanDervort for disposition.
(Document No. 14.) On May 5, 2010, Plaintiff filed her
Supplemental Memorandum in Support of Plaintiff’s Pending Motion
to Extend Time for Service or Alternate Relief. (Document No.
15.) Plaintiff states that upon receipt of the Court’s April 15,
1
Plaintiff states in his Motion that an Affidavit from Mr.
Costner is attached. (Document No. 13 at 4.) Plaintiff then states
that the Affidavit “will be forthcoming.” (Id. at 4, n. 8.) The
Affidavit however, is not included in any of the Exhibits and has
not been submitted to the Court.
4
2010, Order, Jody M. Offutt, Esquire, Offutt Nord, PLLC, sent a
letter to Mr. Francis regarding the claims asserted against Dr.
Raskin, together with an affidavit from Dr. Raskin. (Document No.
15 at Exhibit A.) In his Affidavit, Dr. Raskin asserts that his
current address is “1320 Triangle Road, Bluefield, Virginia
24605.” (Id.) Plaintiff did not attempt to effectuate service on
Dr. Raskin upon receipt of his Affidavit. Nevertheless, Mr.
Francis asserts that as his Motion relates to Dr. Raskin, he
“believes there is enough evidence before the Court that the
plaintiff, by counsel, acted in good faith in trying to perfect
service, notwithstanding Dr. Raskin and apparently his counsel,
had actual notice of the action, and therefore should be made
parties to this action under West Virginia and federal law.”
(Document No. 15 at 1.)
Magistrate Judge VanDervort held a hearing on Plaintiff’s
Motion on June 2, 2010. (Document Nos. 16 and 17.) By Order
entered September 30, 2010, Magistrate Judge VanDervort denied
Plaintiff’s Motion and indicated that a Memorandum Opinion
detailing the reasons for his decision would be filed by October
11, 2010. (Document No. 19.)
That memorandum opinion was never
filed.
By Order entered August 5, 2011, the Court vacated the
Magistrate’s Order (Document No. 19.), reinstated Plaintiff’s
Motion to the active docket of the Court, and directed that
5
Magistrate Judge VanDervort enter Proposed Findings and
Recommendations regarding disposition. (Document No. 26.)
However, for reasons appearing to the Court, the referral to
Magistrate Judge VanDervort is VACATED.
II. Analysis.
Where service of process occurred prior to removal to
federal court, state law controls the question of whether service
was proper.
Wolfe v. Green, 660 F. Supp.2d 738, 745-46 (S.D.W.
Va. 2009).
After removal, attempts to serve process are governed
by Federal Rule of Civil Procedure 4. Fed. R. Civ. P. 81(c)(1);
see also, Bailey v. Chase, 2010 WL 4867963, * 2-3 (S.D.W. Va.
2010).
As service on Defendants Drs. Raskin and Sobczynski was
attempted both before and after removal, the Court will consider
the propriety of service under both federal and state law.
Plaintiff bears the burden to establish proper service of
process. Wolfe, 660 F.Supp.2d at 750.
Rule 4(m) of the Federal Rules of Civil Procedure requires
that a defendant must be served within 120 days after the
Complaint is filed.2 Fed. R. Civ. P. 4(m); see also W. Va. R.
2
Rule 4(e)(1) requires that service upon individuals must be
accomplished “pursuant to the law of the state in which the
district court is located, or in which service is effected, for the
service of a summons upon a defendant in an action brought in the
courts of general jurisdiction of the State[.]” Fed. R. Civ. P.
4(e)(1). Rule 4(e)(2) provides that service may also be
accomplished “by delivering a copy of the summons and of the
complaint to the individual personally or by leaving copies thereof
at the individual’s dwelling or usual place of abode with some
6
Civ. P. 4(k).
In removed actions, however, the 120-day service
period begins to run from the date of removal.
See, e.g.,
Motsinger v. Flynt, 119 F.R.D. 373, 376-77 (M.D.N.C. 1988); see
also RDLG, LLC v. RPM Group, LLC, 2010 WL 6594916, *5-6 (W.D.N.C.
2010) and authorities cited therein.
If service is not effected within 120 days, then the Court,
on motion or on its own, “must” dismiss the action without
prejudice unless the plaintiff shows good cause for the failure.3
Fed. R. Civ. P. 4(m).
In purview of the Advisory Committee Notes
to the 1993 amendment to Rule 4, some courts, including this
Court, have held that even in the absence of good cause, the
court, in its discretion may enlarge the 120 day period for
service. See Henderson v. United States, 517 U.S. 654, 658, 116
person of suitable age and discretion then residing therein. ...”
West Virginia Rule of Civil Procedure 4(d) provides that service
may be accomplished upon individuals as set forth in Federal Rule
4(e)(2) and by “[t]he clerk sending a copy of the summons and
complaint to the individual to be served by certified mail, return
receipt requested, and delivery restricted to the addressee[.]” W.
Va. R. Civ. P. 4(d)(1)(D).
3
Rule 4(m) of the Federal Rules of Civil Provides in part, as
follows:
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.
7
S. Ct. 1638, 1641, 134 L.Ed.2d 880 (1996) (stating in dicta and
citing the 1993 Advisory Committee Notes, that Rule 4(m) “permits
a district court to enlarge the time for service ‘even if there
is no good cause shown.’”); Morgan v. Sebelius, 2010 WL 1404100,
*2 (S.D.W. Va. Mar. 31, 2010) (“This Court FINDS that it has the
discretion to extend the 120-day window for service even if a
plaintiff fails to show good cause for the delay.”). The 1993
Advisory Committee Note regarding Fed. R. Civ. P. 4(m) states as
follows:
The new subdivision 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 consequence of an
application of this subdivision even if there is no
good cause shown.
Fed. R. Civ. P. 4, Advisory Committee Note, 1993 Amendment. Rule
4(m) has not been changed substantively since the 1993 Amendment.
As stated above, Plaintiff filed her Complaint in the
Circuit Court of McDowell County on March 10, 2009.
removed on May 11, 2009.
The case was
Plaintiff therefore had 120 days from
removal in which to effectuate service on the Defendants.
Regarding Dr. Raskin, Plaintiff attempted to serve the Summons
and Complaint on three separate occasions by delivery of a
process server, Mr. Carter.
The attempts were made at Dr.
Raskin’s then place of employment, Bluefield Regional Medical
Center.
Due to hospital policy, Mr. Carter was unable to serve
8
Dr. Raskin at the hospital. He also was unable to ascertain Dr.
Raskin’s residential address. Mr. Carter spoke with Dr. Raskin by
telephone at the hospital on one occasion, but Dr. Raskin hung up
the phone. Mr. Carter subsequently attempted service through the
Mercer County Sheriff’s Department, and Notice of the suit was
published in the Bluefield Daily Telegraph on July 10 and 17,
2009. By Affidavit dated April 7, 2010, Dr. Raskin advised that
he was a resident of the Commonwealth of Virginia and disclosed
his address as 1320 Triangle Road, Bluefield, Virginia 24605.
Though Plaintiff attempted to achieve constructive service
by certificate of publication from the Bluefield Daily Telegraph,
there is no indication that Plaintiff complied with Rule 4(e)(1)
of the West Virginia Rules of Civil Procedure. That Rule allows
service by publication if the plaintiff files with the court an
affidavit indicating that the defendant is a nonresident of the
state, or that the plaintiff used due diligence to ascertain the
residence or whereabouts of the defendant without effect, or that
the process delivered to the sheriff of the county in which the
defendant resides was twice delivered and returned without being
executed. W.Va. R. Civ. P. 4(e)(1).4
The Court finds that
4
West Virginia Rule of Civil Procedure 4(e), addressing
constructive service, provides in part:
(1) Service by Publication. If the plaintiff files with
the court an affidavit:
* * *
(B) That the defendant is a nonresident of the State
9
Plaintiff failed to satisfy the requirements of constructive
service.
First, Plaintiff neither sought an Order from this
Court for service by publication, nor indicated that such request
was made in the Circuit Court of McDowell County.
Second,
Plaintiff failed to demonstrate due diligence in ascertaining the
residence of Dr. Raskin. Though she hired a process server who
was unable to ascertain Dr. Raskin’s residential address, the
server failed to disclose the means utilized to obtain a correct
for whom no agent, or appointed or statutory agent or
attorney in fact is found in the State upon whom service
may be had; or
(C) That the plaintiff has used due diligence to
ascertain the residence or whereabouts of the defendant,
without effect; or
(D) That process, delivered to the sheriff of the
county in which the defendant resides or is, has twice
been delivered to such officer and has been returned
without being executed;
* * *
then the clerk shall enter an order of publication
against such named and unknown defendants. Every order of
publication shall state the title of the action; the
object thereof; the name and address of the plaintiff’s
attorney, if any; that a copy of the complaint may be
obtained from the clerk; and that each named and unknown
defendant must appear and defend on or before a date set
forth in the order, which shall be not fewer than 30 days
after the first publication thereof; otherwise, that
judgment by default will be rendered against the
defendants at any time thereafter. Every such order of
publication shall be published once a week for two
successive weeks (or for such period as may be prescribed
by statute, whichever period is longer) in a newspaper of
general circulation in the county wherein such action is
pending. Proof of service by publication is made by
filing the publisher’s certificate of publication with
the court.
10
address. Finally, though Mr. Carter delivered the process to the
Sheriff of Mercer County, there is no indication that delivery
was attempted on at least two occasions.
Regarding Dr. Sobczynski, the record reveals that Plaintiff
hired a process server, Mr. Costner, in the state of Tennessee to
facilitate service.
Plaintiff failed to submit Mr. Costner’s
Affidavit, which purported to outline his attempts to effectuate
service. The only other attempt of service is an Affidavit of
Publication from the Citizen Tribune in Morristown, Tennessee,
which indicates that Notice of the instant action was published
in the newspaper on July 3 and 10, 2009. For the same reasons
stated with respect to Dr. Raskin, the Court finds that Plaintiff
has failed to establish constructive service by publication on
Dr. Sobczynski.
However, in consideration of the foregoing, the court finds
that good cause exists for Plaintiff’s failure to effect service
within 120 days.
First, the record demonstrates that Plaintiff
has made repeated efforts to serve both Dr. Raskin and Dr.
Sobczynski and that such efforts began almost immediately after
filing suit.
Although plaintiff did not file her motion to
extend the time for service of process in this court until
February 23, 2010, she did file the same motion, albeit
incorrectly, in state court well before expiration of the 120-day
period.
After reviewing the record in its entirety, the court
11
cannot say that plaintiff has not been diligent in her attempt to
serve defendants.
Although she unwisely ceased her efforts
during the pendency of the motion to extend, the record reflects
repeated efforts to serve defendants over a period of months.
Furthermore, any delay in service from June 2, 2010 forward is
attributable to the court.5
However, even if good cause did not exist, the court would
still exercise its discretion to grant an extension in the
absence of good cause.
Henderson v. United States, 517 U.S. 654,
658 (1996); see also Giacomo-Tano v. Levine, 1999 WL 976481, *1
(4th Cir. 1999) (“Even if a plaintiff does not establish good
cause, the district court may in its discretion grant an
extension of time for service.”) (unpublished); Scruggs v.
Spartanburg Regional Medical Center, 1999 WL 957698, *2 (4th Cir.
1999) (observing that Henderson is persuasive as to the meaning
of Fed. R. Civ. P. 4(m)) (unpublished).
The Advisory Committee
Note to Rule 4(m) provide that “[r]elief may be justified, for
example, if the applicable statute of limitations would bar the
refiled action, or if the defendant is evading service or
conceals a defect in attempted service.”
5
Fed. R. Civ. P. 4(m),
At the conclusion of the hearing on June 2, 2010, Magistrate
Judge VanDervort told plaintiff’s counsel that he should wait for
his ruling prior to undertaking further attempts to serve Dr.
Raskin and Dr. Sobczynski. On September 30, 2011, Magistrate Judge
VanDervort denied the motion.
12
Advisory Committee Note, 1993 Amendments; see also Panaras v.
Liquid Carbonic Indus. Corp., 94 F.3d 338, 341 (7th Cir. 1996).
Other factors to consider are whether the defendant had notice of
the suit and whether the defendant has been prejudiced.
Coleman
v. Milwaukee Board of School Directors, 290 F.3d 932, 934 (7th
Cir. 2002).
The court finds that consideration of the foregoing factors
weighs in favor of granting additional time for service.
First,
plaintiff will be barred by the statute of limitations from
refiling her lawsuit.
Second, the record shows that defendants
had notice of the lawsuit because they received a demand packet
from plaintiff’s counsel prior to the filing of the lawsuit or
shortly thereafter.
For this reason, the court perceives no
prejudice to the defendants if this case is allowed to go
forward.
As the United States Court of Appeal for the Seventh
Circuit commented:
Where as in this case the defendant does not show any
actual harm to its ability to defend the suit as a
consequence of the delay in service, where indeed it is
quite likely that the defendant received actual notice
of the suit within a short time after the attempted
service, and where moreover dismissal without prejudice
has the effect of dismissal with prejudice because the
statute of limitations has run since the filing of the
suit . . . , most district judges probably would
exercise lenity and allow a late service, deeming the
plaintiff's failure to make timely service excusable by
virtue of the balance of hardships. But the cases make
clear that the fact that the balance of hardships
favors the plaintiff does not require the district
judge to excuse the plaintiff's failure to serve the
complaint and summons within the 120 days provided by
13
the rule. It does not abolish his discretion. Abuse
of discretion is a hard standard to overcome. . . .
Id.
III. Conclusion.
Having found that Plaintiff has established good cause for
her failure to effect service within 120 days, the Court hereby
GRANTS Plaintiff’s Motion. (Document No. 13.)
Plaintiff has
until October 31, 2011, in which to serve the remaining
defendants.
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to counsel of record.
It is SO ORDERED this 30th day of September, 2011.
ENTER:
David A. Faber
Senior United States District Judge
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