The opinion of the court was delivered by: Judge James M. Munley United States District Court
Before the court are plaintiffs' cross motion for extension of time to effectuate service, defendants' motion to vacate plaintiffs' default judgment, and defendants' motion to dismiss. The motions have been fully briefed and are ripe for disposition.
Plaintiff, Michelle Gonzalez, was a school bus driver for the Pocono Mountain School District. (Doc. 1, Compl. 3, 14). On or about November 27 2007, Michelle Gonzalez was driving a Saf-T-Liner C2 Model bus on a normal school bus route when the bus suddenly shut off on a down hill slope, disengaging the power steering. (Id. 3, 10, 15). As a result, Ms. Gonzalez was forced to stop the bus manually, allegedly causing "serious injury and damage, including, but not limited to herniated discs in her neck with radiculopathy into her left arm, as well as various other injuries all of which may be permanent in nature." (Id. 3, 15). Plaintiffs Michelle and Jason Gonzalez filed the instant lawsuit claiming that Defendants Thomas Built Buses, Inc. and Daimler Trucks North America, LLC were negligent, or should be held strictly liable for these injuries due to faulty wiring in the Saf-T-Liner C2 Model, and that the defective wiring was fraudulently concealed and misrepresented. (Id. 3-19). Jason Gonzalez brought a claim for loss of consortium, resulting from the injuries to his wife. (Id. 19-20).
The Complaint was filed by Michelle Gonzalez and Jason Gonzalez (collectively "plaintiffs") on November 18, 2009. (Doc. 1, Civil Cover Sheet 1). The Summons was also issued on November 18, 2009, and later "served"*fn1 on Daimler Trucks North America, LLC on November 28, 2009 and Thomas Built Buses, Inc. (collectively "defendants") on November 30, 2009 by certified mail/return receipt requested. (Docs. 2-3 at 1). On December 10, 2009, plaintiffs filed an executed Return of Service. (Id.) Assuming the dates on the Return of Service are accurate, a response to the complaint was due by December 21, 2009. None was filed.
On February 1, 2010, this court ordered plaintiffs to make an appropriate filing to further the action within ten days, or the action would be dismissed for failure to prosecute. (Doc. 4 at 1). Plaintiffs filed a status report on February 5, 2010, requesting this Court to hold the matter open for an additional 60 days, to see if defendants would make any entries of appearance. If defendants still failed to make an appearance, plaintiffs requested that this court make an entry of default in their favor. (Doc. 5 at 1-2). On March, 9, 2010, plaintiffs requested an entry of default judgment against defendants. (Doc. 7 at 1). Default was entered against defendants by Clerk of Court on March 9, 2010 for failure to answer, plead, or otherwise defend. (Doc. 8 at 1).
On March 19, 2010, defendants filed a motion to vacate the entry of default and a motion to dismiss, alleging that plaintiffs had failed to serve them within 120 days after filing the complaint, as required by the Federal Rules of Civil Procedure.*fn2 (Doc. 12 at 1); see also FED. R. CIV. P. 4(m).
Defendants claim that service by mail is improper under the Federal Rules of Civil Procedure, and that neither defendant had returned a waiver of service of summons, nor was such form ever filed by plaintiffs. (Doc. 12, at 2-6; Doc. 13 at 2). Furthermore, defendants argue that plaintiffs knew that service by mail was improper, as indicated by the language of the "Notice of Lawsuit and Request for Waiver of Service" forms, which were sent to defendants along with the summons. (Doc. 13 at 2-3). As a result, defendants claim that plaintiffs failed to complete service of process under Rule 4 of the Federal Rules of Civil Procedure. (Doc. 12 at 1-6). As a result, defendants argue that plaintiffs' summons and complaint should be dismissed pursuant to Federal Rules of Civil Procedure Rule 4(m) and Rule 12(b)(4) for insufficient service of process. (Doc. 12 at 1-7).
Defendants further argue that the default entered against them is void for improper service and lack of jurisdiction, and that it should be vacated pursuant to Rule 60(b)(4) of the Federal Rules of Civil Procedure. (Doc. 12, Main Document 3-8). Lastly, defendants argue, "[w]here a plaintiff fails to serve within the 120 day time limit, 'the Court - on motion or on its own after notice to the plaintiff - must dismiss the action . . .'" (Doc. 13 at 12).
In their brief, plaintiffs argue that service was proper under Pennsylvania state law, and alternatively, that they should be granted an extension of time to serve defendants properly. (Doc. 14 at 11).
Defendants assert that plaintiffs are not entitled to an extension of time to serve because they have not filed a timely cross motion with the court, and because plaintiffs have not met the requirements for an extension of process under Federal Rule of Civil Procedure Rule 4(m). (Doc. 15 at 2, 9).
In response, plaintiffs filed a cross motion for extension. In this motion, plaintiffs contend that they are either entitled to a good cause extension, or alternatively, that a discretionary extension is appropriate. (Doc. 23 at 3-4). Defendants argue that plaintiff's motion should be denied because: (1) it is untimely; (2) plaintiffs cannot establish good cause; (3) the court should reject plaintiff's request for a discretionary extension; and (4) plaintiff's equitable arguments lack merit. (Doc. 25 at 4).
Plaintiffs are both citizens of the Commonwealth of Pennsylvania and reside therein. (Doc. 1, Compl. ¶¶ 2-3). Defendant Thomas Built Buses, Inc., is a North Carolina corporation with its principal place of business in North Carolina. (Id. ¶ 4). Defendant Daimler Trucks North America, LLC, is an Oregon corporation with its principal place of business in Oregon. (Id. ¶ 5). The matters in this controversy exceed the value of $75,000, exclusive of interest and costs. (Id. ¶ 1). Therefore, this Court has jurisdiction pursuant to 28 U.S.C. § 1332.
Defendants set forth two main arguments supporting their motion to dismiss and motion to vacate plaintiffs' default judgment. (Docs. 13, 15, 25). First, they argue that plaintiffs' service was not valid under the Federal Rules of Civil Procedure. (Doc. 15 at 2-8). Defendants also argue that plaintiffs are not entitled to an extension of time for service because they have not shown good cause, and because their deficiencies in service were ...