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SPENCER v. STEINMAN

June 24, 1997

CRAIG A. SPENCER, Plaintiff,
v.
MILTON STEINMAN, Defendant.



The opinion of the court was delivered by: ROBRENO

 EDUARDO C. ROBRENO, J.

 June 24, 1997

 Plaintiff Craig A. Spencer brought this action under 42 U.S.C. § 1983 *fn1" against defendant Milton Steinman *fn2" claiming that James Crumlish, Esquire, one of Steinman's lawyers in a state court action brought by Spencer against Steinman, used his influence with Philadelphia Common Pleas Judge Eugene Maier, the judge presiding over the state action, to gain favorable rulings from Judge Maier in that litigation ("Steinman state court litigation"). *fn3" Defendant has moved to dismiss the amended complaint claiming that (1) the Court is without personal jurisdiction over him since neither the original complaint nor the amended complaint were served upon the defendant within 120 days after filing of the original complaint; (2) that the Rooker-Feldman doctrine bars prosecution of the action because to grant plaintiff the relief he seeks, the Court would have to determine that Judge Maier's rulings were wrongly decided; and (3) plaintiff fails to state a § 1983 cause of action under either the "joint participation" or "conspiracy" theories of state action.

 The Court finds that (1) while neither the original complaint nor the amended complaint were served within 120 days of the date of filing the original complaint there is good cause to extend the time for service of the original complaint; (2) that the Rooker-Feldman doctrine does not bar the action because plaintiff is not seeking review of the state court decisions of Judge Maier but rather is pointing to these decisions merely to show that the violation of his rights have caused him injury; (3) that plaintiff has not stated a cause of action under the theory of joint participation for state action because plaintiff is not challenging a state statute or procedure but rather is claiming misuse or abuse of a state procedure by a state actor; and (4) plaintiff's claims of influence by attorney Crumlish upon Judge Maier and of Judge Maier's bias and prejudice toward plaintiff do not establish state action on behalf of the defendant under a conspiracy theory. Therefore, the motion to dismiss will be granted.

 I.

 Defendant contends that because he was not served with either the original complaint or the amended complaint within 120-days after the original complaint was filed *fn4" , service of process was insufficient. Moreover, according to the defendant, there is no good cause for extending the time for service of the original complaint under Rule 4(m) of the Federal Rules of Civil Procedure. Therefore, the defendant argues, the Court is without personal jurisdiction to hear the case. See Fed. R. Civ. P. 12(b)(5).

 Rule 4(m) of the Federal Rules of Civil Procedure provides as follows:

 
Time Limit for Service. If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the [district] court upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if plaintiff shows good cause for the failure, the Court shall extend the time for service for an appropriate period.

 Fed. R. Civ. P. (1993) (emphasis added).

 In performing an analysis in the face of a Rule 4(m) challenge, the Third Circuit has instructed district courts as follows:

 
first, the district court should determine whether good cause exists for an extension of time. If good cause is present, the district court must extend the time for service and the inquiry is ended. If, however, good cause does not exist, the court may in its own discretion decide whether to dismiss the case without prejudice or extend the time for service.

 Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995). See also MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1096 (3d Cir. 1995), cert. denied, 136 L. Ed. 2d 25, 117 S. Ct. 64 (1996).

 Here, the Court finds that each of the above three factors weighs in favor of finding good cause to extend the time for service of the original complaint. As to the first factor, e.g. whether plaintiff made a reasonable effort to effect service, counsel for plaintiff has made the following representations to the Court which have not been controverted by counsel for the defendant: (1) plaintiff attempted unsuccessfully to serve the defendant personally at his Florida residence on several occasions prior to the expiration of the 120-day deadline because the defendant deliberately evaded service of process; (2) plaintiff delivered to defendant's counsel the original complaint prior to the expiration of the 120-day deadline; (3) and plaintiff served the defendant at his Pennsylvania residence only ten days after the expiration of the 120-day deadline once he learned from defendant's counsel that he was not authorized to accept service on behalf of the defendant. Under these circumstances, the Court concludes that plaintiff's failure to effectuate timely service of the original complaint upon the defendant was not the product of counsel for plaintiff's half-heartedness or mere inadvertence.

 As to the second factor, e.g. prejudice to the defendant by the lack of timely service, the "defendant's actual knowledge of the lawsuit--which is undisputed--is crucial." U.S. v. Nuttall, 122 F.R.D. at 167. Since it is clear that the defendant in this case had actual notice, "[this] precludes any finding of detrimental reliance by, or prejudice to, defendant [Steinman], ...


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