The opinion of the court was delivered by: William W. Caldwell United States District Judge
Plaintiff, Israel Torres, a Pennsylvania prisoner, filed this counseled federal civil-rights action arising from an alleged beating inflicted by his cell mate, Enrique Sanabria, while both were incarcerated in the restricted housing unit at SCI-Dallas in Dallas, Pennsylvania. Plaintiff avers that the defendant prison officials and officers (and a prison psychiatrist as well) knew that Sanabria was dangerous to his cell mates but placed Plaintiff in a cell with him anyway. As a result, "Sanabria assaulted Plaintiff Torres, tied and gagged him and brutally beat him." (Complaint ¶ 4). Plaintiff also makes state-law claims.
We are considering a motion to dismiss filed by the "Commonwealth Defendants," the nine Department of Corrections officials and officers named as defendants. The Commonwealth Defendants move to dismiss the complaint under Fed. R. Civ. P. 12(b)(5) for untimely service as the complaint was not served on them within 120 days of its filing as required by Fed. R. Civ. P. 4(m). These defendants also invoke the Eleventh Amendment as barring the action against them in their official capacities and state-law sovereign immunity.
We take this background from the complaint and the evidentiary submissions of the parties in connection with the Commonwealth Defendants' motion. Plaintiff alleges that the beating occurred on or about May 5, 2009, (Compl. ¶ 4) and filed his complaint on May 5, 2011, exactly two years later. On May 16, 2011, Plaintiff's counsel's secretary mailed to each of the ten defendants by first-class mail a copy of the complaint, a cover letter, a notice of lawsuit, a request for waiver of service of summons, and a form for waiver of service of summons. Plaintiff's counsel received no response to these mailings. Defendants represent they never received these mailings.
No return of service was filed with the court. About six months after the complaint was filed, on October 19, 2011, the court issued an order requiring Plaintiff to show good cause by October 31, 2011, why service had not been made within 120 days of the filing of the complaint as required by Fed. R. Civ. P. 4(m). On October 31, 2011, Plaintiff filed a "response," stating in pertinent part, that "[t]hrough an oversight counsel failed to realize that the waiver of service was not returned by defendants . . . ." (Doc. 4, Response ¶ 6). The response requested an additional sixty days to effect service.
The court did not rule on the request. On December 20, 2011, Plaintiff requested the issuance of summonses. On or about December 28, 2011, Plaintiff served the Commonwealth Defendants. (Doc. 8, return of service). On January 17, 2012, the Commonwealth Defendants filed their motion to dismiss.
A. The Court Will Exercise Its Discretionary Authority to Accept the Untimely Service of Process on the Commonwealth Defendants Fed. R. Civ. P. 4(m) requires service of the complaint within 120 days of filing, and if service is not accomplished within that time frame, the court can either dismiss the action or extend the time for service. If a plaintiff establishes good cause for his failure to make timely service, the court must grant an extension of time for doing so. As the Rule provides:
(m) 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 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 ruling on a motion to extend the time for service, the Third Circuit has decided that the court must employ a two-pronged inquiry. First, it 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 & Ratzinger, GMBH, 46 F.3d 1298, 1305 (3d Cir. 1995). Second, even if good cause does not exist, the court still 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 Third Circuit has equated it 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 (following from excusable neglect) "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)).
In moving to dismiss the complaint, the Commonwealth Defendants argue that Plaintiff did not have good cause to serve them beyond the 120-day deadline because Plaintiff admits his counsel's "oversight" caused the ...