Viars v. Greenbrier Minerals, LLC et al
Filing
32
MEMORANDUM OPINION AND ORDER: The Court ORDERS that the 18 MOTION by Nathan Brada to Dismiss for Failure to Timely Serve be GRANTED, and that all claims against Defendant Nathan Brada be DISMISSED WITHOUT PREJUDICE. Signed by Judge Irene C. Berger on 9/12/2016. (cc: attys; any unrepresented party) (slr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
JOHN T. VIARS,
Plaintiff,
v.
CIVIL ACTION NO. 5:15-cv-15410
GREENBRIER MINERALS, LLC,
and NATHAN BRADA,
Defendants.
MEMORANDUM OPINION AND ORDER
The Court has reviewed the Defendant Nathan Brada’s Motion to Dismiss for Failure to
Timely Serve (Document 18), and the Plaintiff’s Response to Defendant Nathan Brada’s Motion
to Dismiss (Document 19). For the reasons stated herein, the Court finds that the motion should
be granted.
PROCEDURAL HISTORY
The Plaintiff initiated this case with the filing of a Complaint (Document 1-1) in the Circuit
Court of Wyoming County, West Virginia, on September 8, 2015. The Plaintiff, a former coal
miner, brought various federal and state law claims against the corporate Defendant, Greenbrier
Minerals, LLC, and against the individual Defendant, Nathan Brada. At the time of the events
alleged in the Complaint, Brada was a mine superintendent employed by Greenbrier Minerals,
with supervisory authority over the Plaintiff. On October 23, 2015, Greenbrier Minerals was
served with the Plaintiff’s Complaint, and service was returned to the Circuit Court of Wyoming
County on November 6, 2015.
On November 20, 2015, the Defendants removed the case to this Court, based on federal
question and supplemental jurisdiction.
At that time, Brada had not been served with the
Plaintiff’s Complaint. On April 21, 2016, the Defendants moved to dismiss all claims against
Brada under Federal Rule of Civil Procedure 4(m), for failure to perfect timely service. The
Plaintiff filed his response on May 7, 2016. The Defendants’ motion is ripe for review.
DISCUSSION
The version of Federal Rule of Civil Procedure 4(m) in effect at the time this case was filed
required a federal district court, either on its own initiative or upon motion of a defendant, to
dismiss without prejudice all claims against any defendant who was not “served within 120 days
after the complaint is filed.” Fed. R. Civ. P. 4(m).1 Where a case is removed from a state court
to a federal district court, and one of the defendants was not served with process prior to removal,
28 U.S.C. §1448 states that “such service or process may be completed or new service issued in
the same manner” as in any case originally filed in a federal district court. 28 U.S.C. §1448.
Federal courts have no authority over service of process in any case prior to removal.
However, the filing of a notice of removal severs the authority of state courts over service of
process, and brings the case under the Federal Rules of Civil Procedure. Taken together, Rule
4(m) and Section 1448 “combine to give a plaintiff ‘a 120 day period following filing of a notice
1
As the Defendants note in their briefing, at the time this case was filed, Rule 4(m) required perfection of service
within 120 days of the filing of a complaint. The rule was subsequently amended on December 1, 2015, to require
service within 90 days. Because the Plaintiff’s case was filed in the West Virginia state courts prior to December 1,
2015, the Court will apply the 120-day service period to this case. See Aliff v. W.Va. Reg’l Jail & Corr. Facility
Auth., 2016 U.S. Dist. LEXIS 6617, at *3 (S.D.W.Va. Jan. 20, 2016) (Johnston, J.)
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of removal in which service may be completed or started anew.’” Aliff, 2016 U.S. Dist. LEXIS
6617, at *3, quoting Lawrence v. Hanson, 197 F.Supp. 1340, 1376 (N.D. Ill. 1992); also citing
14A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure
§1137, at 83 n. 1.1 (Supp. 1998). Thus, if a plaintiff has failed to perfect service on a Defendant
prior to the filing of a notice of removal, removal gives the plaintiff an additional 120 days to
perfect service in accordance with the applicable Federal Rules of Civil Procedure. Id.
Rule 4(m) also requires the Court, upon a showing by the plaintiff of “good cause for the
failure” to serve a defendant, to “extend the time of service for an appropriate period.” Fed. R.
Civ. P. 4(m). Before a district court dismisses a complaint under Rule 4(m), the plaintiff must be
given the “opportunity to show good cause for the failure to serve.” Barkley v. Maryland, 618
Fed. Appx. 182 (Mem) (4th Cir. Oct. 14, 2015) (unpublished). Good cause is a legal term of art,
and as such, is generally given its “established meaning in the legal context.” Robinson v. G D
C, Inc., et. al, 2016 WL 3461285, at *1 (E.D.Va. June 21, 2016) (Ellis, J.), citing McDermott Int’l,
Inc. v. Wilander, 498 U.S. 337, 342 (1991). Thus, in the context of Rule 4(m), good cause “refers
to a legally sufficient ground or reason based on all relevant circumstances.” Id., citing Madden
v. Texas, 498 U.S. 1301, 1305 (1991) (emphasis in original) (other citations omitted). Courts
have identified “multiple factors” for the good cause inquiry, including:
(i) the possibility of prejudice to the defendant, (ii) the length of the delay and its
impact on the proceedings, (iii) the reason(s) for the delay and whether the delay
was within the plaintiff’s control, (iv) whether the plaintiff sought an extension
before the deadline, (v) the plaintiff’s good faith, (vi) the plaintiff’s pro se status,
(vii) any prejudice to the plaintiff, such as by operation of a statute of limitation
that may bar refiling, and (viii) whether time has previously been extended.
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Id., citing Kurka v. Iowa Cnty., Iowa, 628 F.3d 953, 959 (8th Cir. 2010); Newby v. Enron Corp.,
284 Fed.Appx. 146, 149-51 (5th Cir. 2008); Carter v. Keystone, 278 Fed.Appx. 141, 142 (3d. Cir.
2008); Melton v. Wiley, 262 Fed.Appx. 921, 924 (11th Cir. 2008).
In situations where the 120-day period has expired, and the plaintiff requests additional
time, the Fourth Circuit has read the “good cause” requirement of Rule 4(m) alongside Rule
6(b)(1)(B), which specifies that where an “act may or must be done within a specified time, the
court may, for good cause, extend the time … on motion after the time has expired if the party
failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B); see also Martinez v. United
States, 578 Fed.Appx. 192, 194 (4th Cir. 2014) (allegations of ECF difficulties insufficient to show
excusable neglect).
Excusable neglect in the context of Rule 6(b)(1)(B) is “not easily
demonstrated,” and the failure of a party to “act with diligence” is insufficient to meet the standard.
Martinez, 578 Fed.Appx. at 194, quoting Thompson v. E.I. DuPont de Nemours & Co., Inc., 76
F.3d 530, 533 (4th Cir. 1996); Robinson v. Wix Filtration Corp., LLC, 599 F.3d 403, 413 (4th Cir.
2010).
Here, to establish good cause for failure to serve, Plaintiff’s counsel accepts responsibility
for the oversight, but claims that “in his experience,” where claims are made against a corporate
defendant and an individual employee, the “corporate defendant answers the Complaint on behalf
of both the company and the individual defendant.” (Pl.’s Response, at 1.) Plaintiff’s counsel
acknowledges that Greenbrier Minerals did not answer on behalf of Defendant Brada, and
indicates that he “did not realize this” until the present motion was filed. Id. Counsel further
indicates that the parties were “in discussions regarding a request by defense counsel to voluntarily
dismiss” Defendant Brada, but that these discussions were not finalized prior to the filing of the
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instant motion. Id. at 1-2. Thus, counsel requests an extension of thirty (30) days to perfect
service on Defendant Brada.
Applying the applicable factors, it is clear that the Plaintiff cannot show good cause under
Rule 4(m). The Court is unaware of any actual prejudice to Defendant Brada which would affect
his defense to the claims raised in the complaint. However, this case began more than a year ago,
and at the time the present motion was filed, the Plaintiff had waited nearly six months to perfect
service on Defendant Brada. The Plaintiff provides no justification for the delay beyond his own
view of the customs of law practice, which he admits were not followed by the corporate defendant
in this case. There is no dispute that the Plaintiff had the ability to serve process on Defendant
Brada, and simply did not do so. Further, he did not seek an extension prior to the expiration of
the 120-day window. There are no questions regarding the Plaintiff’s good faith, but this is not
dispositive, and in this case, the absence of bad faith does little to bolster the Plaintiff’s position.
Finally, the Plaintiff would not be prejudiced by dismissal, as the Plaintiff admits that he would be
able to re-file against Defendant Brada within the statutes of limitation applicable to each of the
claims raised in the Complaint. (Id. at 2.)
Because the Plaintiff cannot show good cause, the Court is not required under Rule 4(m)
to grant the Plaintiff an extension to perfect service upon Defendant Brada.2 Further, for the same
reasons set forth in the Court’s analysis of good cause, the Plaintiff has not demonstrated
2
Robinson directly addresses the question of whether Rule 4(m) vests a district court with discretion to extend a
party’s time to perfect service of process, regardless of whether good cause is shown. The version of Rule 4(m) in
effect at the time this case was filed clearly establishes that if a party shows good cause, the district court “must” grant
an extension. Fed. R. Civ. P. 4(m). However, Judge Ellis points out in Robinson that in light of the Fourth Circuit’s
holding in Mendez v. Elliot, 45 F.3d 75, 78 (4th Cir. 1995), there is considerable confusion as to whether a district
court in the Fourth Circuit may grant an extension absent a showing of good cause. Robinson, 2016 WL 3461285, at
*3. It is not necessary to address this issue because, given the circumstances presented in this case, even if the Court
were vested with discretion to grant an extension under Rule 4(m), the Court would decline the opportunity to do so.
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“excusable neglect,” and, therefore, is not entitled to an extension of time to perfect service under
Rule 6(b)(1)(B). Although the Plaintiff argues that “judicial economy” will be served by granting
an extension, the Court finds, in light of the lengthy delay in this case and the analysis of the
relevant factors, justice is best served by dismissing all claims against Defendant Brada.
CONCLUSION
Wherefore, after careful consideration, the Court ORDERS that the Defendant Nathan
Brada’s Motion to Dismiss for Failure to Timely Serve (Document 18) be GRANTED, and that
all claims against Defendant Nathan Brada be DISMISSED WITHOUT PREJUDICE.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER:
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September 12, 2016
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