The opinion of the court was delivered by: Judge Sylvia H. Rambo
Plaintiff Kirk A. Perkins initiated this civil rights action against Defendant Charles Staskiewicz, but failed to serve him with a copy of the summons and complaint within 120 days, as required by Federal Rule of Civil Procedure 4(c)(1) and (4)(m). Before the court is Defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(4) and (5) for insufficient process and service of process, and 12(b)(6) for failure to state a claim. (Doc. 4.) For the reasons that follow, the motion will be granted.
Plaintiff's complaint contains the following allegations, which are taken as true for the purpose of this motion to dismiss. Plaintiff is a Pennsylvania State Trooper. (Doc. 1 ¶ 5.) In 2004, an attorney filed a complaint against Plaintiff with the Pennsylvania State Police, alleging that Plaintiff falsified documents. (Id. ¶ 6.)The Pennsylvania State Police Internal Affairs Division assigned Defendant to investigate. (Id. ¶ 7.) On February 8, 2006, Plaintiff was charged with forgery and tampering with records, and arrested. (Id. ¶ 7.) Later, the forgery charge was withdrawn, and Defendant allegedly acknowledged in an affidavit that the investigation was flawed and there was no probable cause for the arrest. (Id. ¶¶ 9--10.) As a result of the charges and the arrest, Plaintiff suffered emotional distress, was suspended from his job without pay, incurred attorneys's fees, and his reputation was damaged as a result of media coverage.(Id. ¶¶ 11--17.) Plaintiff seeks compensatory and punitive damages, and attorney's fees. (Id. ¶ 21.)
On February 1, 2008, Plaintiff initiated the instant suit by filing a complaint against Defendant pursuant to 42 U.S.C. § 1983 for violations of the Fourth and Fourteenth Amendments arising out of the investigation and arrest. (Doc. 1.) The complaint also includes state law claims for false arrest, malicious prosecution, abuse of process, defamation, and intentional infliction of emotional distress. A summons was issued on February 4, 2008.
Plaintiff attempted to effectuate personal service of the complaint by hand delivery on June 10, 2008, 130 days after the complaint was filed. On June 25, 2008, Defendant filed a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(4)--(6), arguing that there was improper process and service of process, and the complaint failed to state a claim. (Doc. 4.) A brief in support thereof was filed the same day. (Doc. 5.) Plaintiff filed a brief in opposition on July 14, 2008, (Doc. 14), and a reply brief was filed by Defendant on July 22, 2008, (Doc. 8). Accordingly, the motion is ripe for disposition.
Defendant argues that all claims against him should be dismissed for improper service pursuant to Rule 12(b)(4) and (5) because Plaintiff failed to properly serve him within 120 days of filing his complaint, as required by Fed. R. Civ. P. R. 4(m).*fn1
Under the Federal Rules of Civil Procedure, a plaintiff must serve the summons and complaint upon a defendant within 120 days of filing the complaint. Fed. R. Civ. P. 4(c). Federal Rule of Civil Procedure 4(m) provides that,
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;
Fed. R. Civ. P. 4(m). Accordingly, where a plaintiff has shown good cause for failure to serve a defendant within the required time, a court must extend the time for service of process for an appropriate time. Fed. R. Civ. P. 4(m). However, where there has been no good cause for the delay, the court may dismiss the complaint without prejudice, or choose to extend the deadline for service. Fed. R. Civ. P. 4(m); see also Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995).
The test for good cause requires "at least as much as would be required to show excusable neglect." Dominic v. Hess Oil V.I. Corp., 841 F.2d 513, 517 (3d Cir. 1988). Excusable neglect may be demonstrated by a plaintiff's good faith and reasonable basis for failure to serve within the required time period. Petrucelli, 46 F.3d at 1097. In determining whether there was excusable neglect, relevant factors include:
1) whether the inadvertence reflected professional incompetence such as ignorance of rules of procedure,
2) whether an asserted inadvertence reflects an easily manufactured excuse incapable of ...