United States District Court, M.D. North Carolina
ROBERT BOLUS, individually and doing business as BOLUS TRUCK SALES CENTER, Plaintiffs,
FLEETWOOD RV, INC., TOM JOHNSON CAMP CENTER CHARLOTTE, INC., CUMMINS ATLANTIC, LLC, Defendants.
MEMORANDUM OPINION AND ORDER
N. CARLTON TILLEY, Jr., Senior District Judge.
This matter is back before the Court on Defendant Cummins Atlantic, LLC's Motion to Dismiss for Failure to Prosecute, Lack of Personal Jurisdiction, and Insufficient Service of Process (Doc. #36), Defendant Tom Johnson Camping Center Charlotte, Inc.'s ("Tom Johnson") Motion to Dismiss for Failure to Prosecute, Lack of Personal Jurisdiction and Insufficient Service of Process (Doc. #39), Defendant Fleetwood RV, Inc.'s Motion to Dismiss for Lack of Prosecution (Doc. #41), Plaintiff Robert Bolus's Motion for Extension of Time Within Which to Re-Serve Defendants (Doc. #48), and the Magistrate Judge's Order and Recommendation (Doc. #56). Also before the Court are Defendant Fleetwood RV, Inc.'s Motion for Alternative Sanctions (Doc. #63) and Defendant Cummins Atlantic, LLC's Motion for Attorneys' Fees (Doc. #66).
After the Magistrate Judge recommended that Defendants' motions to dismiss be granted and Mr. Bolus's motion be denied as moot, Mr. Bolus filed an affidavit which this Court considered in its determination that sanctions less severe than dismissal are appropriate. (Docs. #56, 57, 61.) As a result, Mr. Bolus was given thirty days to file a response to Fleetwood RV, Inc.'s motion to dismiss and explain why no such response was filed in a timely fashion, the parties were given thirty days to address the Court's authority to grant an extension for Mr. Bolus to re-serve Defendants,  and Defendants were directed to file motions discussing what sanctions would appropriate in lieu of dismissal. (Doc. #61.) With the exception of Tom Johnson, the parties have responded to the Court's Order.
First, it was presumed that Mr. Bolus had not responded to Tom Johnson's motion to dismiss because, as docketed, Mr. Bolus's opposition to the motions to dismiss appeared only to respond to Cummins Atlantic, LLC's and Fleetwood RV, Inc.'s motions. (See Doc. #50.) However, as Mr. Bolus explained, in his Brief in Opposition to Defendants' Motions for Dismissal, he did in fact respond to each of the three Defendants' motions. (See, e.g., id. at 1 ("Pending before the court are motions by each of the defendants to dismiss this action.... Plaintiff opposes the motions to dismiss the action....") (emphasis added).)
Next, the Court asked the parties to address whether it has authority to permit Mr. Bolus to re-serve Defendants, particularly in light of the fact that the time for service has expired. After the case was filed on October 31, 2011, it was transferred from the District of Pennsylvania to this Court on August 17, 2012, 291 days after the Complaint was filed. (Docs. #1, 27.) Prior to the transfer, Fleetwood RV, Inc. had answered the Complaint. (Doc. #6.) However, although Mr. Bolus served Tom Johnson and Cummins Atlantic, LLC with a summons issued by the District of Pennsylvania, he did not perfect service on either of those Defendants because the District of Pennsylvania lacked personal jurisdiction over them. He has not served either of those Defendants with a summons issued by this Court. And, he did not move for an extension of time to do so until February 11, 2013 - 469 days after the Complaint was filed and 178 days after the case was transferred to this District.
Mr. Bolus argues that "[t]he law is in a considerable state of uncertainty as to whether or not there must be re-service in the transferee district, at least where no answer has been filed that raises personal jurisdictional or service issues." (Doc. #50 at 4.) Yet, he then acknowledges that "it would be the wiser course for plaintiff immediately to attempt re-service on each of the defendants[, ]" (id. at 6), a course of action that Mr. Bolus should have taken long before he moved to do so.
In contrast to Mr. Bolus's description of the state of the law on the issue of re-service, the Fourth Circuit has stated, albeit in an unpublished decision, that re-service in the transferee court is required at least when service in the transferor court was unperfected. Harding v. Williams Property Co., 163 F.3d 598 (Aug. 31, 1998) (unpublished). Harding argued that service in the transferee court was unnecessary because the defendants had actual notice of the suit and the ineffective service resulted from the court's lack of personal jurisdiction over the defendants. Id. at *4. The Fourth Circuit disagreed, explaining that Rule 4(a) of the Federal Rules of Civil Procedure "strongly implies that service of a summons issued by the transferee court is a prerequisite to personal jurisdiction[, ]" quoting the relevant part of the Rule, "The summons shall be signed by the clerk... identify the court...." Id . (emphasis added in Harding.) Moreover, the court explained that "[t]he character and purpose of the summons confirm the accuracy of this implication" because "[t]he summons is one means by which the federal courts assure defendants of due process of law." Id.
Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied. [S]ervice of summons is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served.'
Id. (quoting Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S.Ct. 404 (1987) (quoting Mississippi Publ'g Corp. v. Murphree, 326 U.S. 438, 444-45, 66 S.Ct. 242 (1946))). According to the Harding court, "It follows, then, that previously unperfected personal jurisdiction does not attach in a transferee district court until a summons issued by that court is properly served." Id . quoted in Hansan v. Fairfax Cnty. Pub. School Bd., No. 1:09CV558(GBL), 2010 WL 1779679, *2-3 (E.D. Va. Apr. 30, 2010) (holding that the "Plaintiff's attempts to serve Defendant were not effective under Rule 4(m) because the District Court of Maryland did not have personal jurisdiction over Defendant"). Therefore, although Harding is an unpublished opinion, re-service on Tom Johnson and Cummins Atlantic, LLC is required.
The issue of whether or not the Court has authority to permit Mr. Bolus to re-serve Tom Johnson and Cummins Atlantic, LLC, particularly in light of the expiration of the time period within which to serve them, is informed by Rule ...