United States District Court, W.D. North Carolina, Charlotte Division
MAX O. COGBURN, Jr., District Judge.
THIS MATTER is before the court on defendant's Motion to Dismiss (#5) pursuant to Rule 12(b)(5). Plaintiff has filed a Response and defendant has filed a Reply.
FINDINGS AND CONCLUSIONS
Plaintiff filed her Complaint on June 11, 2014, and had 120 days from such filing to obtain and secure process. Fed.R.Civ.P 4(c)(1) & (m). Rule 4(h) provides the manner in which a plaintiff must serve a corporation. If a plaintiff fails to perfect service on a corporation in the manner set forth by Rule 4(h) within the 120 day time period, the Rule provides that the court "must" dismiss the action without prejudice or order that the plaintiff perfect service within a specified time period. Fed.R.Civ.P. 4(m). If, however, the plaintiff demonstrates good cause for the failure to timely serve the defendant, the court must extend the time period for plaintiff to perfect service. Id. While an outlier, current binding precedent mandates dismissal of the case if good cause is not shown.
In moving to dismiss, defendant contends that it was served some 55 days after the 120 day window for service of process closed under Rule 4(m), Federal Rules of Civil Procedure. Plaintiff, who is represented by counsel, counters that the delay was attributable to a process server who was hired by counsel, given the process package to serve, but never served process.
Review of the response reveals that counsel for plaintiff waited 90 days after filing the Complaint to engage the services of an unnamed process server. Apparently, no attempts were made to serve process in the first 90 days, even though the Clerk of Court issued process the day the Complaint was filed.
After engaging a process server at or around day 90, the response does not reveal that plaintiff's counsel supervised or checked on the process server she hired at any time before the time for service ran on day 120. Even though the time for service ran on October 9, 2014, counsel states that she did not discover the lapse until an unspecified day in November 2014. She then hired a second process server, who served the corporate defendant on December 2, 2014, which was 175 days from the filing of the Complaint and 55 days after the time allowed under Rule 4(m) had expired. Plaintiff did not file a motion to reopen and enlarge the time for service and does not explain in her Response why, when she discovered that process had not been served by October 9, 2014, she did not file a motion to reopen and enlarge the time for service under Rule 4 before serving defendant with what was then facially stale process.
As mentioned above, it is plaintiff's burden to now show "good cause" for service outside the 120 days allowed for service. The thrust of plaintiff's argument is that it was the first process server's fault because he or she inexplicably abandoned their duties. Counsel for plaintiff argues that such disappearance of her process server amounts to good cause and that "[a] professional process server disappearing without any notice is unique; in fact, there seems to be no indication this issue has been litigated in any federal district." Response (#10) at 4. The court questions counsel's research on this issue as well as her underlying thesis.
First, this precise issue has in fact been litigated in the Fourth Circuit and was the subject of an unpublished Fourth Circuit decision on Westlaw. In Clark v. E.I. DuPont de Nemours and Co., Inc., 86 F.3d 1149 (Table), 1996 WL 283321 (4th Cir. May 30, 1996) ( per curiam ), the Court of Appeals for the Fourth Circuit held as follows:
Clark's only excuse for her failure to timely serve the Defendant was that she relied on a commercial process server "but for reasons unknown to [her], service was not made." (Brief of Appellant, p. 6). Moreover, Clark's motion for enlargement of time was not filed until five months after the expiration of the 120-day limit. We agree with the district court's conclusion that Clark failed to establish either good cause for her failure to comply with Rule 4(m) or excusable neglect entitling her to an extension under Rule 6(b).
Id. 1996 WL at *1. Thus, not only has the issue been litigated, there is case law precisely on point. While Clark is not binding on this court because it is unpublished, it is highly persuasive.
Second, the court does not concur in plaintiff's underlying thesis that the fault was attributable to a process server. The core concern is the duty of counsel to supervise the people she employs, be they secretaries, paralegals, associates, investigators, or process servers. Had counsel researched that topic, the court believes she would have found an abundance of cases missteps being attributed by counsel to paralegals, secretaries, and runners. See Van Horn v. Perrine, 1991 WL 4655, at *1 (4th Cir. Jan. 18, 1991) (attempting to blame a secretary's errors for missing deadlines does not establish good cause); Morris-Belcher v. Housing Authority of City of Winston-Salem , 2005 WL 1423592, at *4 (M.D. N.C. June 17, 2005) ...