Vestal v. Berryhill

Filing 14

MEMORANDUM OPINION AND ORDER re: Plaintiff's 11 MOTION by Brenda K. Vestal to Reopen and Reconsider, 13 SUPPLEMENTAL MOTION by Brenda K. Vestal to Reopen Case and Reconsider: The court is unable to grant the relief requested at this juncture. However, the court will allow plaintiff to once again supplement her motion to demonstrate good cause exists for her failure to timely serve defendant. Any additional filings in support of this motion should be filed within ten (10) days of entry of this Order. Signed by Senior Judge David A. Faber on 7/31/2018. (cc: counsel of record; Deborah Garton, electronically and via U.S. mail) (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
BRENDA K. VESTAL,
Plaintiff,
v.

CIVIL ACTION NO. 1:18-00422

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiff’s motion to reopen
this case and reconsider its Order of July 5, 2018.
11).

See ECF No.

At the urging of and with the permission of the court, see

ECF No. 12, plaintiff has filed a supplemental motion to reopen
and reconsider.

See ECF No. 13.

This case was dismissed pursuant to Federal Rule of
Procedure 4(m) based upon plaintiff’s failure to timely serve
defendant.

Federal Rule of Civil Procedure 4(m) states that

“[i]f a defendant is not served within 90 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 enter an order that service be made
within a specified time.

But if the plaintiff shows good cause

for the failure to, the court must extend the time for service
for an appropriate period.”

As contemplated by the rule, the

court entered a Notice of Failure to Serve on June 19, 2018.
Counsel for plaintiff insists that she did not receive the

court’s notice and most of her filings since the case was
dismissed have focused upon the alleged nonreceipt of that
notice.

However, and as the court pointed out in its Memorandum

Opinion and Order of July 12, 2018, see ECF No. 12, plaintiff
still has not given a reason, much less shown good cause, for her
failure to serve defendant within 90 days.

By the time the court

entered its notice on June 19, 2018, the 90 days had already run
and plaintiff should have already served defendant by the time
she got the court’s notice.

So, even if plaintiff had received

the notice on or about June 19, 2018, she still would have had to
explain her failure to make service within 90 days or the case
would have been dismissed.

In other words, plaintiff still has

to comply with the Notice of Failure to Serve.
As of this date, the court still has no idea why
plaintiff did not serve defendant within 90 days.

And, in order

to get an extension of the time for service, plaintiff must show
“good cause for the failure” to serve within 90 days.
Rule of Civil Procedure 4(m).

Federal

Nonreceipt of the court’s June 19,

2018 Notice does not establish “good cause” for the original
failure to serve the complaint.*

*

At best, it would require that the court revisit its Order
dismissing the case because plaintiff allegedly did not receive
the notice contemplated by Rule 4(m). However, plaintiff still
would have to show good cause for her failure to serve defendant
within 90 days in order to obtain additional time to effectuate
service. A court cannot extend the 90-day period for service
without a reason for doing so.
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In summary, plaintiff’s counsel still has not given a
reason, much less shown good cause, for her failure to make
service within the requisite time period.

For this reason, the

court is unable to grant the relief requested at this juncture.
However, the court will allow plaintiff to once again supplement
her motion to demonstrate good cause exists for her failure to
timely serve defendant.

Any additional filings in support of

this motion should be filed within ten (10) days of entry of this
Order.

If plaintiff explains why she did not serve defendant

within 90 days and the court concludes that plaintiff had a good
reason for her failure to do so, the court will reopen this
matter and give plaintiff additional time to make service.
The Clerk is directed to directed to send a copy of this
Order to counsel of record.
IT IS SO ORDERED this 31st of July, 2018.
ENTER:

David A. Faber
Senior United States District Judge

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