United States District Court, W.D. Pennsylvania
September 13, 2005.
RICHARD TONEY, Plaintiff,
ROBERT W. SEIBERT, JR., ET AL., Defendants.
The opinion of the court was delivered by: ARTHUR SCHWAB, District Judge
MEMORANDUM OPINION AND ORDER
Because plaintiff has not served his complaint against the
defendants within 120 days and has offered no good cause for his
failure to do so, this Court will exercise its discretion to
grant defendants' motion to dismiss pursuant to Fed.R.Civ.P.
The relevant facts are not in dispute. Plaintiff filed his
complaint on April 5, 2005, against Harmar Township and three
council persons, asserting federal question jurisdiction on his
First Amendment retaliation, Title VII and other claims, and
supplemental jurisdiction over state law Whistleblower and breach
of contract claims. Attorney Walter Nalducci's certificate of
service attached to the complaint states that the summons and
complaint were served by certified mail "this date" of April 5,
2005, which is inconsistent with the fact that the summons was
not actually issued by the Clerk of Court until April 7, 2005.
Motion to Dismiss, Exhibits 2, 3.
Plaintiff's counsel does not dispute that the copies of the
complaint were mailed to the wrong address, 710 Freeport Road
instead of 701 Freeport Road, or that the copies of the complaint
were missing two pages of allegations. Counsel does state,
however, that the Post Office "caught" the mistake and delivered
the complaints and summonses on April 8, 2005, and therefore
"warrants that proper service occurred under Rule 4 of the
Federal Rules of Civil Procedure on April 8, 2005." Plaintiff's Response to Motion to
Dismiss, ¶ 6. Plaintiff is mistaken; as defendants correctly
observe, the Federal Rules of Civil Procedure do not permit
service of the complaint by certified mail as a matter of course.
Nevertheless, attorney Michael Hennessy, then representing
defendants, telephoned plaintiff's counsel on May 12, 2005, to
inform him that defendants would waive service pursuant to Rule
4(d), and advised him to mail the proper forms for waiver of
service and to otherwise comply with Rule 4(d) regarding waiver
of service. Mr. Hennessy followed the phone conversation with a
letter stating his position that the complaint "has not yet been
properly served," and advising plaintiff's counsel to forward the
Rule 4(d) Waiver of Summons Forms and he would be "happy to
return them . . . executed on behalf of all defendants for
filing, thus waiving the requirement for personal service."
Motion to Dismiss, Exhibit 4.
Mr. Nalducci does not dispute these assertions, but claims: (i)
that there was some confusion about which lawyer was going to be
representing defendants because "both counsel who had been
involved at this point were leaving the firm"; (ii) that
"subsequent calls . . . did not clear up the issue as to who
would be handling the matter. . . ."; and (iii) that plaintiff's
counsel would be contacted when that decision was made. Response
to motion to dismiss, ¶¶ 7, 8. Attorney Nalducci does not attach
an affidavit to his response, nor are there any letters or
correspondence or emails to support his alleged "confusion" about
who would be representing defendants. In any event, the "attorney
confusion" issue is not supported on the record as attorney
Hennessy's letter was quite explicit it advised Mr. Nalducci to
mail the proper waiver forms to him, Mr. Hennessy.
Not until August 19, 2005, weeks after the 120 day period
within which to properly serve a complaint has expired, did Attorney Nalducci attempt to obtain
a waiver of service when he sent a copy of the complaint and a
notice of lawsuit and request for waiver of service form to
current counsel for defendants, but he did not include the
summons and waiver of summons forms to be served and returned nor
did he include a postage prepaid return envelope, as required by
Mr. Nalducci's sole explanation for the failure to serve the
complaint within 120 days as required by the Federal Rules of
Civil Procedure is his alleged "confusion" about which lawyer
would be representing defendants, and his claim that he "had yet
to hear from defense counsel despite Plaintiff's counsel making
multiple calls to inquire on the matter." Response to motion to
dismiss, ¶ 12. Again, there are no phone records, affidavits or
other documentation supporting this averment about "multiple
Rule 4(m) provides:
If service of the summons and complaint is not made
upon a defendant within 120 days after the filing of
the complaint, the 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 the plaintiff shows
good cause for the failure, the court shall extend
the time for service for an appropriate period.
In deciding whether to dismiss an action for failure to serve
within 120 days, the district court must employ a two-pronged
inquiry. First, the Court must determine whether good cause for
the failure to effect timely service exists. "If good cause is
present, the district court must extend time for service and the
inquiry is ended." Petrucelli v. Bohringer and Ratzinger,
46 F.3d 1298, 1305 (3d Cir. 1995). Second, if good cause does not
exist, the court nonetheless has discretion to either dismiss the case without prejudice or extend
the time for service. Id.
Rule 4(m) does not define "good cause," but the United States
Court of Appeals for the Third Circuit has equated "good cause"
with the "excusable neglect" standard under Fed.R.Civ.P. 6(b)(2).
MCI Telecommunications Corp. v. Teleconcepts, Inc.,
71 F.3d 1086, 1097 (3d Cir. 1995). Thus, good cause "require[s] a
demonstration of good faith on the part of the party seeking an
enlargement and some reasonable basis for noncompliance within
the time specified in the rules." Id. "[T]he primary focus is
on the plaintiff's reasons for not complying with the time limit
in the first place." Id.; Boley v. Kaymark, 123 F.3d 756, 758
(3d Cir. 1997) (quoting MCI Telecommunications,
71 F.3d at 1097).
Neither "inadvertence of counsel," "half-hearted efforts by
counsel," or "reliance upon a third party or on a process
server," constitutes "good cause" to excuse the failure to serve
within 120 days. Petrucelli, 46 F.3d at 1307 (internal
quotation marks omitted); Braxton v. United States,
817 F.2d 238, 241 (3d Cir. 1987). A plaintiff's "disregard for . . . the
`technical niceties' of service of process" does not constitute
good cause. Ayres v. Jacobs & Crumplar, P.A., 99 F.3d 565, 568
(3d Cir. 1996). See also Momah v. Albert Einstein Medical
Center, 158 F.R.D. 66, 69 (E.D.Pa. 1994) (failure to timely
serve a complaint will not be excused when the omission was due
to the attorney's lack of diligence in effectuating the
requirements of the rule).
Plaintiff's counsel has not demonstrated good cause for his
neglect. He made no efforts to comply with the rule in timely
fashion after attorney Hennessy informed him, on May 12, 2005,
that his attempt to serve by certified mail was not effective,
and invited him to forward the necessary forms and prepaid
postage addressed envelope for execution of defendants' waiver of
service. Counsel's attempts to properly serve defendants can at
best be described as half-hearted. It is within the Court's discretion to extend the time for
service despite the lack of good cause, but plaintiff has offered
no reason this Court should do so. To date, he still has not
complied with the Federal Rules of Civil Procedure through his
belated mailing of some of the requisite forms to defense
counsel, but not others, on August 19, 2005. Counsel has given
the Court no reason to expect his level of attention to this case
will improve with time or with another chance to serve his
complaint belatedly. Accordingly, the Court declines to exercise
its discretion to enlarge the time within which to serve the
complaint nunc pro tunc. For the foregoing reasons,
AND NOW, this 13th day of September, 2005, IT IS HEREBY
ORDERED that defendants' motion to dismiss pursuant to
Fed.R.Civ.P. 4(m) (Document No. 2) is GRANTED. IT IS FURTHER
ORDERED that this the case is DISMISSED without prejudice.
The Clerk of Court is directed to mark this case closed.
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