United States District Court, M.D. Pennsylvania
A. RICHARD CAPUTO, District Judge.
Presently before me is Industrial Resources, Inc.'s ("Moving Defendant") Motion to Dismiss Plaintiff Ashley McLaud's Amended Complaint. (Doc. 17.) Because a discretionary extension of time for service is warranted in this case, Moving Defendant's motion to dismiss will be denied and the service of the summons and Amended Complaint by Plaintiff upon Moving Defendant on September 9, 2014 will be deemed timely.
Plaintiff commenced this action by Complaint filed on April 16, 2014 (Doc. 1) against Industrial Resources, Inc., Industrial Resources of Michigan, LLC, IROM, Inc., Dan Dykstra, Gerry Dykstra, CHEP (U.S.A.), Inc., CHEP International Inc., and CHEP Container and Pooling Solutions, Inc. The Complaint, however, did not establish that subject matter jurisdiction over the action was proper because Plaintiff failed to properly plead the citizenship of Defendant Industrial Resources of Michigan, LLC. Accordingly, by Memorandum and Order dated April 22, 2014, I sua sponte ordered Plaintiff to file an Amended Complaint properly alleging the citizenship of the limited liability company defendant within twenty-one days or the action would be dismissed. Plaintiff filed her Amended Complaint on May 13, 2014. (Doc. 5.)
On September 10, 2014, Plaintiff filed a Certification of Service of Summons and Amended Complaint evidencing that service was effectuated on Industrial Resources, Inc. on September 9, 2014. (Doc. 8.) Accordingly, service of the Summons and Amended Complaint on Industrial Resources, Inc. occurred 146 days after filing of the initial complaint and 119 days after filing of the Amended Complaint.
After obtaining an extension of time to respond to the Amended Complaint, (Doc. 15), Moving Defendant filed the instant motion to dismiss on October 20, 2014. (Doc. 17.) Specifically, Moving Defendant seeks dismissal of the Amended Complaint for insufficient service of process. Plaintiff filed a brief in opposition to the motion on November 3, 2014, (Doc. 21), and Moving Defendant filed its reply brief in further support of its motion on November 17, 2014. (Doc. 23.) The motion to dismiss is now fully briefed and ripe for disposition.
Moving Defendant seeks dismissal of the Amended Complaint pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure. Rule 12(b)(5) enables a court to dismiss a case for "insufficient service of process." Fed.R.Civ.P. 12(b)(5). "In resolving a motion under Rule 12(b)(5), the party making the service has the burden of demonstrating its validity when an objection to service is made." Reed v. Weeks Marine, Inc., 166 F.Supp.2d 1052, 1054 (E.D. Pa. 2001) (citing Grand Entm't Grp., Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488-89 (3d Cir. 1993)). Moving Defendant contends that service of process was insufficient in this case because it was not timely served by Plaintiff.
Rule 4(m) of the Federal Rules of Civil Procedure sets forth the following time frame a plaintiff has to serve a defendant with the summons and copy of the complaint:
If a defendant 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 a specified 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).
Here, Moving Defendant asserts that service was untimely because it was not served within 120 days of the filing of the initial complaint. Plaintiff, conversely, argues that service was timely because Moving Defendant was served within 120 days of the filing of the Amended Complaint.
The Third Circuit does not appear to have directly addressed whether the filing of an amended complaint restarts the 120-day period for effectuating service under Rule 4(m). However, other courts, including the Tenth Circuit, have held that "the 120-day period provided by Rule 4(m) is not restarted by the filing of an amended complaint except as to those defendants newly added in the amended complaint." Bolden v. City of Topeka, 441 F.3d 1129, 1148 (10th Cir. 2006) (citing Carmona v. Ross, 376 F.3d 829 (8th Cir. 2004); 4B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1137, at 377 (3d ed. 2002); 1 James Wm. Moore et al., Moore's Federal Practice § 4.80 (3d ed. 1997)); see also Novak v. CGA Law Firm, No. 13-2533, 2014 WL 772604, at *2 n.4 (M.D. Pa. Feb. 25, 2014); Witasick v. Estes, No. 11-3895, 2012 WL 3075988, at *3 (D.N.J. July 30, 2012) ("[f]iling of amended complaint does not extend the 120-day time for service of process."); Zhang v. Haven-Scott Assocs., Inc., No. 95-2126, 1996 WL 355344, at *5 (E.D. Pa. June 21, 1996) ("The filing of an amended complaint does not restart the service period as to defendants named in the original complaint.").
Despite this authority, Plaintiff contends that the particular facts of this case, namely, where the issue of the defective jurisdictional allegations was raised sua sponte and Plaintiff was directed to file an amended pleading or else the action would be dismissed, counsels in favor of finding that the 120-day period for service commenced upon the date of filing of the Amended Complaint. I am aware of one district court that has recently addressed this precise issue. See Warren v. Bituminous Cas. Corp., No. 13-2354, 2014 WL 348544, at *2 (E.D. La. Jan. 31, 2014). In Warren, as is the case here, "[t]he Court ordered Plaintiffs to amend their complaint because they failed to adequately plead subject matter jurisdiction in their original complaint." Id . Thereafter, the plaintiffs filed an amended complaint, and the defendants then moved to dismiss the action for failure to timely effectuate service in accordance with Rule 4(m). See id . In considering the defendants' motion, the court addressed whether the filing of the amended complaint restarted the 120-day period for service because "[i]f the amended complaint restarted the 120-day period, the instant motion would be rendered moot." Id . Relying on Bolden v. City of Topeka, 441 F.3d 1129 (10th Cir. 2006), the Warren court concluded that the filing of an amended complaint does not ...