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Barbosa v. Dana Capital Group

March 31, 2009

MIGUEL A. BARBOSA, PLAINTIFF
v.
DANA CAPITAL GROUP, INC.; PHOENIX LENDING GROUP, INC.; TRAVIS CARTER; AMERICAN HOME MORTGAGE INVESTMENT CORP.; AMERICAN HOME MORTGAGE; AMERICAN BROKERS CONDUIT; AMERICAN HOME MORTGAGE SERVICING, INC.; AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., DEFENDANTS



The opinion of the court was delivered by: James Knoll Gardner, United States District Judge

OPINION

This matter is before the court on plaintiff's Motion for Reconsideration, which motion was filed April 11, 2008, and plaintiff's Motion for Service by Publication Upon Defendant Travis Carter, which motion was filed April 30, 2008.*fn1 Plaintiff sought leave (1) to effect service on defendant Phoenix Lending Group, Inc. during the week of April 14, 2008, and (2) to serve defendant Travis Carter by publication.

Upon consideration of plaintiff's motions, I grant in part and deny in part plaintiff's Motion for Reconsideration, and I deny plaintiff's Motion for Service by Publication Upon Defendant Travis Carter.

Specifically, I grant plaintiff's Motion for Reconsideration to the extent that it sought leave to serve defendant Phoenix Lending Group, Inc. during the week of April 14, 2008, and deny it to the extent that it seeks leave to serve defendant Travis Carter by publication. I deny plaintiff's Motion for Service by Publication Upon Defendant Travis Carter, which also seeks leave to serve defendant Travis Carter by publication.

PROCEDURAL HISTORY

According to the docket entries and record papers, the pertinent procedural history is as follows.

Plaintiff filed his Complaint on April 30, 2007. Pursuant to Federal Rule of Civil Procedure 4(m), plaintiff was required to serve defendants by August 28, 2007.*fn2

Plaintiff attempted service on defendants Phoenix Lending Group, Inc. and Travis Carter by certified mail, which was received on May 3, 2007. However, by my December 11, 2007 Order (docket entry number 15) I found that this attempted service was defective because certified mail is not a proper method of service under the federal rules and plaintiff did not comply with the rules for service by mail under the law of Pennsylvania (the state in which this district court is located) or California (the state in which service was attempted). Accordingly, I ordered plaintiff to properly serve defendants Phoenix Lending Group, Inc. and Travis Carter and to file proof of proper service by December 31, 2007, or this action would be dismissed pursuant to Rule 4(m).

On December 28, 2007, plaintiff filed a Motion for Reconsideration of my December 11, 2007 Order. My March 26, 2008 Order granted in part and denied in part plaintiff's Motion for Reconsideration, and ordered plaintiff to properly serve defendants Phoenix Lending Group, Inc. and Travis Carter and to file proof of proper service by April 15, 2008, or this action against these defendants would be dismissed pursuant to Rule 4(m). I noted that because I did not rule on plaintiff's Motion for Reconsideration before the December 31, 2007 service deadline, a brief extension until April 15, 2008 to serve defendants Phoenix Lending Group, Inc. and Travis Carter was appropriate.

On April 8, 2008 and April 9, 2008, plaintiff unsuccessfully attempted personal service on defendant Travis Carter. On April 11, 2008 plaintiff filed the within Motion for Reconsideration of my March 26, 2008 Order seeking leave to serve defendant Phoenix Lending Group, Inc. during the week of April 14, 2008 by serving the owner of defendant Phoenix Lending Group, Inc. and to serve defendant Travis Carter by publication. On April 18, 2008 plaintiff effected service on defendant Phoenix Lending Group, Inc. by delivering a copy of the summons and complaint to defendant's agent. On April 30, 2008 plaintiff filed the within Motion for Service by Publication Upon Defendant Travis Carter seeking leave to serve defendant Travis Carter by publication. As of the date of this Order and Opinion, plaintiff has not provided proof of service upon defendant Travis Carter.

DISCUSSION

Briefing Requirement

Rule 7.1(c) of the Rules of Civil Procedure of the United States District Court for the Eastern District of Pennsylvania ("Local Rules") provides that all motions "shall be accompanied by a brief containing a concise statement of the legal contentions and authorities relied upon in support of the motion." Courts in this District have consistently held the failure to cite any applicable law is sufficient to deny a motion as without merit because zeal and advocacy is never an appropriate substitute for case law and statutory authority in dealings with the Court. Anthony v. Small Tube Manufacturing Corp., 535 F.Supp.2d 506, 511 n.8 (E.D.Pa. 2007)(Gardner, J.).

Plaintiff's within motions were not accompanied by briefs and therefore do not comply with Local Rule 7.1(c). Accordingly, I could have denied plaintiff's motions for failure to comply with Local Rule 7.1(c). With regard to plaintiff's request to effect service on defendant Phoenix Lending Group, Inc. during the week of April 14, 2008, I exercised my discretion to consider plaintiff's Motion for Reconsideration despite the absence of the required legal briefing, and granted this motion to the extent that it sought leave to serve defendant Phoenix Lending Group, Inc. during the week of April 14, 2008.*fn3

With regard to plaintiff's request to serve defendant Travis Carter by publication, I considered it on the merits even though plaintiff failed to comply with Local Rule 7.1(c)'s briefing requirement. For the reasons which follow, I deny plaintiff's Motion for Service by Publication Upon Defendant Travis Carter, and plaintiff's Motion for Reconsideration to the extent that it seeks to serve defendant Carter by publication.

Extension of Time for Service

Federal Rule of Civil Procedure 4(m) provides that plaintiff must complete service within 120 days after the Complaint is filed. Here, plaintiff's Complaint was filed on April 30, 2007, so plaintiff was required to serve defendants by August 28, 2007. As discussed above, I twice granted plaintiff extensions of time in which to serve his Complaint (from August 28, 2007 to December 31, 2007, and from December 31, 2007 to April 15, 2008).

Plaintiff's Motion for Reconsideration seeks a further (third) extension of time within which to serve defendant Phoenix Lending Group, Inc. In his motions, plaintiff asserts "that the owner of Defendant Phoenix Lending Group, Inc. will return to the area of Irvine, California during the week of April 14, 2008" and seeks leave to serve this defendant "during the week of April 14, 2008."*fn4 Motion for Reconsideration at paragraph 5. Plaintiff served defendant Phoenix Lending Group, Inc. on April 18, 2008 by delivering a copy of the summons and complaint to defendant's agent.

Determining whether to extend the time for service involves a two-step inquiry. Boley v. Kaymark, 123 F.3d 756, 758 (3d Cir. 1997). First, the court must determine whether good cause exists for plaintiff's failure to effect timely service and, if it does, the court must grant the extension. See Fed.R.Civ.P. 4(m); Boley, 123 F.3d at 758. Second, if good cause does not exist, the district court must consider whether to grant a discretionary extension of time. Boley, 123 F.3d at 758.

In determining whether good cause exists, a court's primary focus is on the plaintiff's reasons for not complying with the time limit in the first place. Id. The United States Court of Appeals for the Third Circuit has equated good cause with excusable neglect, which it has described "as requiring 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." McCrae v. KLLM Inc., 89 Fed.Appx. 361, 364 (3d Cir. 2004).

Here, plaintiff stated that its process server had been unable to locate defendant Phoenix Lending Group, Inc. and that its owner would return to the Irvine, California area during the week of April 14, 2008. Plaintiff promptly served this defendant on April 18, 2008, during the week of April 14, 2008 for which an extension was requested.

Moreover, I note that plaintiff moved for an extension of time before the deadline for service, a factor which weighs in favor of finding good cause. See McCurdy v. American Board of Plastic Surgery, 157 F.3d 191, 196 (3d Cir. 1998); Seldon v. Home Loan Services, Inc., ...


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