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Thackurdeen v. Duke University

United States District Court, M.D. North Carolina

March 23, 2018



         This matter comes before the Court on a Motion for Judgment on the Pleadings [Doc. #67] pursuant to Federal Rule of Civil Procedure 12(c) filed by Defendant Duke University ("Duke") and a Motion to Dismiss, or in the alternative, For a Judgment on the Pleadings [Doc. #71] pursuant to Federal Rules of Civil Procedure 4(m) and 12(c) filed by Defendant Organization for Tropical Studies ("OTS"). For the reasons explained below, both Motions [Docs. #67, 71] will be denied in part and granted in part. The time within which to serve Defendants has been extended and, therefore, they were timely served. However, Plaintiffs' negligence and wrongful death claims are barred pursuant to valid waiver and release agreements. The intentional infliction of emotional distress claim against both Duke and OTS remains.


         Plaintiffs Roshni Thackurdeen and Raj B. Thackurdeen filed the present action, individually, and as co-administrators of their late son's estate. (Compl. [Doc. #1] ¶ 1.) During the spring of 2012, their son, Ravi Thackurdeen, died while a student enrolled in the Global Health and Tropical Medicine Program ("Global Health Program" or "Global Health"), a college study abroad program, in Costa Rica. (Id. ¶¶ 10, 17.) At the time, Ravi had been a student at Swarthmore College in Pennsylvania. (Id. ¶ 9.) However, while attending the Global Health Program, he was enrolled at Duke and OTS. (Id. ¶ 10.)

         The events giving rise to Ravi's death occurred at the end of the Global Health semester. (Id. ¶ 14.) On April 29, 2012, the students were taken on a "celebratory trip" to a beach in Playa Tortuga, Costa Rica, (Id. ¶¶ 14, 17.) According to the Complaint, Costa Rican beaches are rampant with "deadly rip currents" and Playa Tortuga is known for "dangerously strong rip currents and swimming [there] was not advisable." (Id. ¶¶ 38, 39.) In addition, as with most Costa Rican beaches, there are no lifeguards on that beach. (Id.) Despite Duke and OTS taking Global Health students to Playa Tortuga for the three years prior to Ravi's death, the students on Ravi's trip did not have notice of the beach trip and it was not anywhere on the program's schedule. (Id. ¶¶ 14-15.) Further, the students "were told it was safe to swim" and were instructed to "swim parallel to the shore" if caught in a rip current. (Id. ¶ 15.) Ravi and a fellow student went swimming, but were caught in a rip current and pulled out to sea. (Id. ¶ 16.) The classmate was rescued, but Ravi was pulled over 300 yards away from shore by the rip current, and, after treading water for thirty minutes, he drowned. (Id. ¶¶ 16-17.)

         On August 8, 2014, the Thackurdeens filed the present action asserting three claims against both Duke and OTS: (1) negligence, (2) wrongful death based on negligence, and (3) intentional infliction of emotional distress, (Id. ¶¶ 43-60.) In support of their negligence claims, the Thackurdeens allege that Duke and OTS failed to exercise reasonable care and breached their duty to Ravi by, among other things: taking the students to Playa Tortuga, a beach notorious for rip currents, failing to make inquiries regarding dangerousness and safety measures, failing to warn the students of the dangers of Playa Tortuga and swimming in the ocean, failing to request lifeguards, and failing to rescue Ravi. (Compl. ¶ 46.)

         The Complaint was originally filed in the United States District Court for the Southern District of New York where the Thackurdeens live. (Id. ¶¶ 5-7.) After the United States Court of Appeals for the Second Circuit affirmed the Southern District of New York's dismissal of the action for lack of personal jurisdiction, the Second Circuit Court of Appeals ordered the case transferred to this district, (2nd Cir. Summ. Order [Doc. #52] (Sept. 1, 2016)), and, on September 7, 2016, it was transferred here, [Doc. #53]. The Clerk of Court issued summonses for Duke and OTS on January 5, 2017, [Docs. #60, 60-1], and the Defendants were served the same day [Docs. #68 at n.3, 72 at 6]. On February 24, 2017, Duke and OTS filed the present Motions.


         Federal Rule of Civil Procedure 12(c) provides that "[a]fter the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings." A motion for judgment on the pleadings pursuant to Rule 12(c) is analyzed under the same standard as a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss. Burbach Broad. Co. of Del, v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002). A district court "'must accept as true all of the factual allegations contained in the complaint' and 'draw all reasonable inferences in favor of the plaintiff.'" Kensington Volunteer Fire Dept., Inc. v. Montgomery Cty., Md., 684 F.3d 462, 467 (4th Cir. 2012) (quoting E.I, du Pont de Nemours & Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir. 2011)). A court may consider the pleadings and all written documents attached to the pleadings and "[t]he factual allegations in the answer are taken as true to the extent they have not been denied or do not conflict with the complaint." Mendenhall v. Hanesbrands, Inc., 856 F.Supp.2d 717, 724 (M.D. N.C. 2012).


         Duke and OTS both move to dismiss the action based on the Thackurdeens' alleged failure to serve valid summons in a timely manner, and in the alternative, to dismiss the first two causes of action, negligence and wrongful death, because they are barred by contractual waiver and release.


         In support of their motions, Duke and OTS both argue that, because the Thackurdeens failed to serve a valid summons on either Duke or OTS within the time required by Federal Rule of Civil Procedure 4(m), the action must be dismissed. Further, if the action is dismissed and refiled, the claims will be barred by the applicable statute of limitations. Specifically, OTS asserts that

Plaintiffs filed this suit in the Southern District of New York without any attempt to determine (or plead) that Duke and OTS would be subject to personal jurisdiction there. Plaintiffs then waited until after their claims had been dismissed to argue for the first time, on appeal, that this case should have been transferred instead. After transfer, Plaintiffs waited 120 days to have a new summons issued and attempt service, despite being fully aware of prior decisions from this circuit (and this Court) that warned them that immediate action was necessary.

(OTS's Br. [Doc. #72] at 8-9.) Duke makes essentially the same argument in support of dismissal. (Duke's Mem. [Doc. #68] at 8-15.)

         "Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant." Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). "Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Under Federal Rule of Civil Procedure 4(m),

If 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 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.

Fed. R. Civ. P. Rule 4(m). Rule 4(m) does not define "good cause, " but it is generally regarded to mean "reasonable and diligent efforts ... to effect service prior to the" deadline. Chen v. Mayor & City Council of Balt., 292 F.R.D. 288, 293 (D. Md. 2013) (citation omitted).

Because the question of what constitutes "good cause" necessarily is determined on a case-by-case basis within the discretion of the district court, courts have declined to give it a concrete definition, preferring to analyze a number of factors. These include whether: 1) the delay in service was outside the plaintiff's control, 2) the defendant was evasive, 3) the plaintiff acted diligently or made reasonable efforts, 4) the plaintiff is pro se or in forma pauperis, 5) the defendant will be prejudiced, or 6) the plaintiff asked for an extension of time under Rule 6(b)(1)(A).

Scott v. Md. State Dep't of Labor, 673 Fed.Appx.. 299, 306 (4th Cir. 2016)(unpublished).

         In support of its Motion, Duke argues that the Thackurdeens have not met the good cause standard. Specifically,

[t]he Plaintiffs have exhibited a consistent pattern of neglect and delay, first in instituting litigation in a forum where there was no personal jurisdiction, next in failing to seek an order extending the time within which to issue a summons, and finally by waiting 120 days before seeking a summons. On transfer, the Plaintiffs were required to seek an order extending the time for the issuance and service of a valid summons. They did not do so. That extension, under the circumstances of this case and Rule 4(m), could not have been more than ninety days and should have been less. When the Plaintiffs delayed an additional 120 days to even seek a summons or to serve it-without an order extending time-the statute of limitations ran in the interim, barring the claims for wrongful death.

(Duke's Mem. at 13.) OTS makes a similar argument in support of dismissal. (OTS's Br. At 7-8.)

         In response, the Thackurdeens assert that they have shown good cause. (Pls.' Joint Resp. to Duke's Mot. [Doc. #75] at 10; Pls.' Joint Resp. to OTS's Mot. [Doc. #76] at 10.) In support of this contention, they submitted the affidavit of Ben Meiselas, an attorney at Geragos & Geragos in Los Angeles. (Aff. of Ben Meiselas, Mar. 27, 2017 [Docs. #75-1, 76-1 ].) Mr. Meiselas avers that after this matter was transferred to the Middle District of North Carolina, his firm "immediately began searching for local counsel to assist ... in the matter." (Id. ¶ 2.) According to Meiselas,

Some factors that made finding local counsel in North Carolina difficult and time consuming were: (1) the fact that this matter had been ongoing for some time and that it accordingly had a very long procedural history, (2) the fact that this matter involves a death in a foreign country, and (3) the fact Duke University has a very expansive alumni network in the state of North Carolina, meaning that any and all firms considering becoming involved in this matter first had to conduct a scrupulous investigation to make sure that serving as local counsel would not create a conflict of interest.

(Id. ¶ 3.)

         According to Meiselas, his firm contacted a local North Carolina attorney on September 8, 2016, the day after the case was transferred here. (Id. ¶ 4.) That attorney declined to take the case but recommended that Meiselas contact James A. Roberts III at Lewis & Roberts, PLLC. (Id.) After conducting research on Lewis & Roberts and other North Carolina firms, Meiselas' firm approached them to be local counsel and Lewis & Roberts subsequently conducted its own due diligence. (Id. ¶¶ 6, 7.) On January 3, 2017, Lewis & Roberts agreed to serve as local counsel. (Id. ¶ 8.) The Clerk of Court for the Middle District of North Carolina issued summonses on January 5, 2017. (Id. ¶ 12, Summons [Docs. #60, 60-1].) Duke and OTS were served the same day. [Docs. #68 at n.3, 72 at 6.]

         When applying the Fourth Circuit's Scott factors to the facts here, it is determined that the Thackurdeens have not shown good cause for the delay. The delay in service was not outside their control; they are not pro se or in forma pauperis; and they did not ask for an extension of time under Rule 6(b)(1)(A). In addition, Duke and OTS were not evasive in any way. As to the two other factors, it is unclear whether or not Duke or OTS will be prejudiced and whether or not the Thackurdeens were diligent in their efforts to effect service. In addition, the ...

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