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Cholewka v. Ohio Casualty Insurance Co.

United States District Court, M.D. Pennsylvania

April 27, 2017

ASHLEY CHOLEWKA, Plaintiff,
v.
OHIO CASUALTY INSURANCE CO t/a or d/b/a/ PEERLESS INDEMNITY CO. t/a or d/b/a LIBERTY MUTUAL INSURANCE CO., Defendant.

          MEMORANDUM

          A. Richard Caputo United States District Judge

         Presently before the Court is an Amended Complaint (Doc. 4) and a Response to the Court's Order to Show Cause for why this action should not be dismissed for failure to prosecute (Doc. 6) filed by Plaintiff Ashley Cholewka. For the reasons stated below, the Court will dismiss Plaintiff's Amended Complaint without prejudice for failing to establish subject matter jurisdiction, and will grant Plaintiff leave to file a second amended complaint as well as a discretionary extension of time to effect service.

         I. Relevant Background

         Plaintiff filed her original Complaint on November 2, 2016. (Doc. 1.) This Court issued a summons on November 4, 2016. (Doc. 2.) Plaintiff subsequently filed the instant Amended Complaint on April 13, 2017. (Doc. 4.) On April 19, 2017, as no return of service had been filed, the Court issued an Order to Show Cause for why this action should not be dismissed for failure to prosecute. (Doc. 5.) On April 24, 2017, Plaintiff filed a Response to the Court's Show Cause Order. (Doc. 6.) Plaintiff asserts that she attempted service by mail on November 13, 2016 at the address for Peerless Indemnity Insurance Company (“Peerless Indemnity”) listed on Plaintiff's insurance policy. (Id. ¶ 2.) Similarly, Plaintiff asserts that she attempted service by mail on November 14, 2016 at the address for Ohio Casualty Insurance Company (“Ohio Casualty”) listed on Plaintiff's insurance policy. (Id. ¶ 3.) On or about March 1, 2017, Plaintiff asserts her transmittals were returned to her by the United States Postal Service, which noted “unable to forward, ” “not deliverable as addressed, ” and “return to sender.” (Id. ¶ 4.) Shortly thereafter, Plaintiff states she received a fax from Liberty Mutual Insurance Company indicating its new address. (Id. ¶ 5.) Plaintiff filed the instant Amended Complaint on April 13, 2017 and avers that she again attempted service by mail on April 14, 2017. (Id. ¶¶ 7-8.) To date, there has been no return of service filed with the Court.

         II. Analysis

         A. Rule 4(m)

         Rule 4(m) of the Federal Rules of Civil Procedure sets forth the following time frame for a plaintiff to serve a defendant with the summons and copy of the complaint:

If a defendant is not served within 90 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.

         The 90-day period provided by Rule 4(m)[1] is not restarted by the filing of an amended complaint, except as to newly added defendants. McLaud v. Indus. Res., Inc., No. 3:CV-14-737, 2015 WL 737569, at *2-*3 (M.D. Pa. Feb. 20, 2015).

         Nevertheless, if a plaintiff shows “good cause” for failing to timely effect service, the court “must” provide an appropriate extension of time. See Id. at *3. As this Court has previously explained:

“Good cause” within the meaning of Rule 4(m) has been equated with the concept of “excusable neglect” under Rule 6(b)(2), and 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. In considering whether good cause exists, courts have considered such factors as (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. Indeed, the primary focus of the good cause inquiry is on the plaintiff's reasons for not complying with the time limit in the first place.

Id. (internal citations and quotation marks omitted). Here, Plaintiff's counsel argues that she has made diligent efforts to serve “but has experienced difficulty due to Defendant's corporate merger and subsequent changes of address. Defendant's address on its policy issued to Plaintiff is no longer correct.” (Doc. 6 ¶ 9.) Counsel's efforts to effect service consisted of mailing the Complaint and service waiver in mid-November to the addresses listed on Plaintiff's policy for Ohio Casualty and Peerless Indemnity and, apparently, never following up on that correspondence until those envelopes were returned as not deliverable on or around March 1, 2017. (Id. ¶ 4.) However, the 90-day window in which to effect service prescribed by Rule 4(m) had elapsed well prior to March 1, 2017. Counsel does not explain why he was unaware of this fact. Counsel's apparent mistake does not constitute “good cause, ” as neither ignorance of the Rules nor inadvertence constitutes “good cause” requiring an extension. See McLaud, 2015 WL 737569, at *4 (quoting Sykes v. Blockbuster Video, 205 Fed.Appx. 961, 963 (3d Cir. 2006)); see also Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3d Cir. 1987). Furthermore, counsel never moved for an enlargement of time to serve within the 90-day window. Beckerman v. Susquehanna Twp. Police & Admin., 254 Fed.Appx. 149, 154 (3d Cir. 2007) (finding no good cause for extension based in part on failure of Plaintiff to move for extension of time before the expiration of the service period). Accordingly, the Court finds Plaintiff has not demonstrated “good cause” requiring an extension.

         If Plaintiff fails to show “good cause, ” a discretionary extension of time might still be appropriate. See McLaud, 2015 WL 737569, at *4 (citing Boley v. Kaymark, 123 F.3d 756, 758 (3d Cir. 1997)). In assessing whether a discretionary extension is warranted, courts consider:

[A]ctual notice of the legal action; prejudice to the defendant; the statute of limitations on the underlying causes of action; the conduct of the defendant; and whether the plaintiff is represented by counsel, in addition to any other factor that may be relevant when ...

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