United States District Court, M.D. Pennsylvania
PETER PONZINI and MARYEM BARBAROS, as Co-Administrators of the Estate of MUMUN BARBAROS, Deceased, Plaintiffs,
MONROE COUNTY, et al., Defendants.
ROBERT D. MARIANI, District Judge.
I. Procedural History
Presently before the Court is a Motion to Dismiss filed by Defendant William Buffton. ( See Def. William Buffton's Mot. to Dismiss, Doc. 82.) The Complaint alleges that Buffton is aphysician affiliated with Defendant Primecare Medical, Inc., which provided treatment for inmates at the Monroe County Correctional Facility. ( See Am. Compl. Doc. 43, at ¶ 15.) According to the Amended Complaint, Dr. Buffton was also atreating physician for inmate Mumun Barbaros. ( Id. at ¶ 19.) Mr. Barbaros committed suicide while incarcerated, which led to the present lawsuit against twenty-seven named defendants, including Buffton. ( See generally id. )
Buffton's Motion to Dismiss rests on a number of grounds. (See, e.g., Def. William Buffton's Brief in Supp. of Mot. to Dismiss, Doc. 85, at 3-4 (listing the issues presented in the Motion).) Most importantly, however, Buffton moves for dismissal under Federal Rule of Civil Procedure 12(b)(4) and 12(b)(5) for insufficient service of process. (Id. at 9.) Federal Rule of Civil Procedure 4(m) sets the timeframe for valid service of process, providing that:
[i]f adefendant is not served within 120 days after the complaint is filed, the court- on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within aspecified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). In this case, the Amended Complaint was filed on June 23, 2011. ( See Doc. 43). The summons was issued to Buffton on July 24, 2013, (see Doc. 78), and service was finally effected on August 2, -, (see Process Receipt and Return, Doc. 79, at 1)-a full 771 days after the filing of the Complaint.
[The Third Circuit] has developed atwo-pronged inquiry to determine whether the grant of an extension of time in which to serve [nunc pro tunc] is proper under Rule 4(m). First, the court must determine whether good cause exists for the failure to have effected service in atimely manner. If so, the extension must be granted. If good cause has not been shown, however, the court still may grant the extension in the sound exercise of its discretion.
McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191, 196 (3d Cir. 1998).
a. Good Cause
"Good cause" is equated "with the concept of excusable neglect' of Federal Rule of Civil Procedure 6(b)(2), which requires 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.'" MGI Telecomm. Gorp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995) (quoting Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1312 (3d Cir. 1995) (Becker, J., concurring in part and dissenting in part)). Typically, "courts have considered three factors in determining the existence of good cause: (1) reasonableness of plaintiff's efforts to serve, (2) prejudice to the defendant by lack of timely service, and (3) whether plaintiff moved for an enlargement of time to serve." Id. (citing United States v. Nuttall, 122 F.R.D. 163, 166-67 (D. Del. 1988)).
In the present case, Plaintiffs never filed an extension of time to serve, but only initiated the service process more than two years after the filing of the Amended Complaint, when on "July 1, 2013, during the deposition of a correctional officer and LPN, Paul James, ... it became apparent that defendant Buffton remained unrepresented and had not been served." (Pls.' Brief in Opp. to Mot. to Dismiss of Def. William Buffton, Doc. 96, at 19.) The essential issue is whether Plaintiffs have shown that a 771-day delay-nearly six and ahalf times the time allowed for service in Federal Rule 4(m), while the case proceeded through discovery in Buffton's absence-was reasonable.
In this regard, Plaintiffs' explanations for their failure to serve are rather lackluster. They allege only that "[i]nitially the Complaint was served with a Waiver of Service at the same location as all of the other medical defendants.... Once plaintiffs were notified that defendant Buffton was not employed by defendant PrimeCare Medical, Inc., numerous internet searches were conducted during which no address could be located." (Doc. 96 at 18.) When these Internet searches were unavailing and lithe case began to move forward with substantial motion practice, the filing of an Amended Complaint and additional motions to dismiss, " the Plaintiffs appear to have simply assumed that Buffton had been served and was represented by counsel. Notwithstanding the fact that, by Plaintiffs' own admission, Buffton was not employed by PrimeCare, Plaintiffs "proceeded under the impression that counsel for all of the other medical defendants also was representing defendant Buffton." ( Id. at 19.)
The Court cannot find these meager efforts at service reasonable, for several reasons. First, Plaintiffs never articulate what led them to the conclusion that Buffton was represented by counsel when (a) they were already notified that he was not employed by PrimeCare and (b) they had already begun-and then inexplicably ended-a search for a location to serve him. Second, Plaintiffs do not explain how "numerous internet searches" constitute a sufficient attempt to find Buffton. They do not offer evidence of inquiring with properly-served Defendants PrimeCare or Monroe County Correctional Facility for information as to Buffton's last known place of abode, last known employer, or recent contact information. They do not offer evidence that they attempted, through the use of a professional investigator or asimilar service, to research Buffton's whereabouts, or that they consulted any non-Internet resources, such as aphone book, that may contain different information. Nor do they offer evidence of any altemative types of service attempted, such as service by publication, after other attempts had failed. Third, Plaintiffs do not explain why they gave up searching for Suffton just because ...