Free Opening Brief in Support - District Court of Delaware - Delaware

Case 1:O5—cv—OO789-KAJ Document 3-2 Filed O3/29/2006 Page1 0f4

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Not Reported in F.Supp.2d Page 1
Not Reported in F.Supp.2d, 2004 WL 1699611 (E.D.Pa.)
(Cite as: Not Reported in F.Supp.2d)
H summons was returned unexecuted on April 29,
Briefs and Other Related Documents 2003. In response, Plaintiff filed for an alias
Only the Westlaw citation is currently available. summons for Jacqueline Shulman, which was
United States District Court,E.D. Pennsylvania. returned executed on July 24, 2003. However,
Martha STEELE Jacqueline Shulman was not authorized to accept
v. service for Defendant. It is stipulated that service
HCI DIRECT was finally made on August 20, 2003. See
N0. Civ.A. 02-4347. Stipulation and Order of August 28, 2003 (docket
no. 18).
July 29, 2004.
Defendant filed a motion to dismiss on September
9, 2003, alleging that the delay in service was
Martha Steele, Philadelphia, PA, pro se. prejudicial and requesting dismissal of the action
Karin M. Gunter, Law Offices of Karin M. Gunter, under Fed.R.Civ.P. 4(m). Plaintiff contends that
Philadelphia, PA, for Plaintiff. there was good cause for the delay and,
Joseph J. Centeno, Obermayer Redmann Maxwell alternatively, that the Court should exercise its
& Hippel LLP, Philadelphia, PA, for Defendant. discretion to extend the service deadline.
MEMORANDUM AND ORDER
KAUFFMAN, J. II. Legal Standard
*1 Now before the Court is Defendant's Motion to
Dismiss ("Motion"). For the reasons that follow, the Rule 4(m) states in relevant part;
Motion will be denied. 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,
I Background upon motion or on its own initiative after notice to
the plaintiff shall dismiss the action without
In this action, Plaintiff Martha Steele seeks damages prejudice as to that defendant or direct that service
from her former employer, Defendant HCI Direct, be effected within a specified time; provided that if
for alleged violations of the Equal Pay Act of 1963, the plaintiff shows good cause for the failure, the
29 U.S.C. § 206(d); the Americans with Disabilities court shall extend the time for service for an
Act, 42 U.S.C. § 12101 et seq.; and the Civil Rights appropriate period.
Act of 1964, 42 U.S.C. § 2000e et seq. On June 28,
2002, Plaintiff filed a Motion for Leave to Proceed Fed.R.Civ.P. 4(m). The determination whether to
In Forma Pauperis, which was granted on July 19, extend time involves a two-step inquiry. Petrucelli
2002. On August 15, 2002, Plaintiff moved this v. Bohringer and Ratzinger, 46 F.3d 1298, 1305
Court to stay proceedings. Her subsequent motion (3d Cir.1995). The Court first determines whether
for the appointrrrent of counsel was granted on good cause exists for Plaintiffs failure to effect
September 23, 2002. Counsel was appointed on timely service. Boley v. Kaymark, 123 F.3d 756,
January 6, 2003, and on or about January 29, 2003, 758 (3d Cir.1997). If good cause exists, the
an attorney-client relationship formally began. The extension must be granted. Ia'.; see also
Amended Complaint was filed on March 19, 2003. Fed.R.Civ.P. 4(m). Courts have considered three
On the same day, a complaint summons was issued factors in determining the existence of good cause:
to the United States Marshals. However, this (1) the reasonableness of plaintiffs efforts to serve;
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Case 1 :O5—cv—OO789-KAJ Document 3-2 Filed O3/29/2006 Page 3 of 4 Pagc 3 OM
Not Reported in F.Supp.2d Page 2
Not Reported in F.Supp.2d, 2004 WL 1699611 (E.D.Pa.)
(Cite as: Not Reported in F.Supp.2d)
(2) whether the defendant is prejudiced by the lack excuse a delay, even when dismissal results in the
of timely service; and (3) whether the plaintiff plaintiffs case being time-barred due to the fact that
moved for an enlargement of time to serve. See MCI the statute of limitations on the plaintiffs cause of
Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d action has run.” Petrucelli, 46 F.3d at 1307
1086, 1097 (3d Cir.1995), cert. denied, 519 U.S. (internal quotations omitted). In short, counsel for
815, 117 S.Ct. 64, 136 L.Ed.2d 25 (1996). Plaintiff should "[t]reat the 120 days with the
respect reserved for a time bomb." Id., citing
*2 Even if good cause does not exist, however, the Braxton v. United States, 817 F.2d 238, 241 (3d
district court must consider whether to grant a Cir.1987). Counsel has provided no evidence that
discretionary extension of time. MCI T elecomm. she followed up with the Marshals and during at
Corp., 71 F.3d at 1098. One factor a court may least part of this time, she may have given them the
consider in exercising its discretion is whether the wrong address for Defendant. See Plaintiffs
statute of limitations has run in the interim. Response in Opposition to Defendant's Motion to
Marshall v. Park Plaza Condominium Association, Disrniss ("Response") at 4. Accordingly, her efforts
1999 WL 58656 (E.D.Pa.1999), citing Petrucelli, camrot be considered "reasonab1e" under the first
46 F.3d at 1305-06. If the statute of limitations has prong of the good faith test. See MCI Telecomm.
run, this may weigh in favor of granting an Cgrpu 71 F_3d at 1097_ FN1
extension. See Boley, 123 F.3d at 759. The fact that
it has run is not itself sufficient to deny an
€Xl€hs10h·1d- FN1. Plaintiff never filed for an extension
of time in which to serve either the
Complaint or the Amended Complaint.
III. Analvsis
However, Defendant has failed to establish any
Fmhi ths date ofthe C0mP1¤ih1 to the date Oh which prejudice from the delay. Although it avers that the
Scwicc was rnede, aPPY0X1m3t€1Y 397 deys passed. passage of time prejudices it "because the case has
From the date of the AI1'1CDdCd COII1pl&lI1t to the become stale, with the erosion of witnesses'
dete 911 which service Was made, aPPY0X1m3t€1Y 154 memories and potentially relevant evidence,"
days passed. Dufihg s0m€ of this timsi Plaintiff Motion at 4-5, Defendant has produced no specific
avers that she relied on the United States Marsha1’s evidence of memories eroded or evidence lost,
efforts to serve Defendant. However, "reliance upon Furthermore, in this cage the danger of "erosion" is
8 third Paffy OY Oh 3 PY0€€ss s€fV€f is ah insufficient minimized because Plaintiff was required to file an
basis to constitute good cause for failure to timely administrative action with the Equal Opportunity
serve, and is also an insufficient basis for granting Employment Commission ("EEOC") before
an extension of time to effect service." Petrucelli, bringing suit_ Much of the evidence required in this
46 F·3 WL 448229, *6 (E.D.Pa.1996). Plaintiff has failed the EEOC action, Finally, even if not properly
to show good cause for failing to serve her original served, Defendant was aware of the pending action;
eeinpleint Within the 120 deys pennitted. While the its Executive Vice-President listed Plaintiffs claim
Court acknowledges that she was acting pro se and in the company's bankruptcy filings on February 21,
is untrained in the law, this alone does not excuse 2003, six months before service was made, See
violations of the deadline. See generally Veal v. Plaintiffs Response in Opposition to Defendant's
Us-. 84 Fed-Apps 253, 256 (3d Cir.2004). Motion to Disiniss, Exhibit B at 6-9.
Nor can Plaintiff demonstrate that her counsel had *3 The absence of prejudice persuades the Coun to
good cause for the failure to serve the Amended exercise its discretion to grant an extension of time.
Complaint during the 120 days following its filing. See Bglgyl 123 F_3d at 759, Also weighing in
"[H]elf—heaned efforts by counsel to effect service Plaintiffs favor is the fact that the statute of
ef process prior to the deedline do not necessarily limitations has nin on Piaintitrs claim. FN2 1t1.
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f
Case 1 :O5—cv—OO789-KAJ Document 3-2 Filed O3/29/2006 Page 4 of 4 Page 4 O 4
Not Repoited in F.Supp.2d P3g€ 3
Not Reported in F.Supp.2d, 2004 WL 1699611 (E.D.Pa.)
(Cite as: Not Reported in F.Supp.2d)
Furthermore, Plaintiff filed this case pro se, and END OF DOCUMENT
predictably appears to have been without an
understanding of the rules of service. Once
appointed, counsel diligently filed an Amended
Complaint and attempted service, first on Defendant
and then on an individual she thought could accept
it on Defendant's behalf. While her efforts were
insufficient to constitute good cause for the failure
to serve within the 120 days, Defendant was not
prejudiced by the delay, and the Court will exercise
its discretionary power to extend the date by which
service was required to August 20, 2003, the date
on which the parties have stipulated that it was
made.
FN2. See Petrucelli, 46 F.3d at 1306, citing
Fed.R.Civ.P. 4(m) advisory committee's
note (1993) ("Re1ief may be justified, for
example, if the applicable statute of
limitations would bar the refiled action");
see also Boley, 123 F.3d at 759 ("We are
aware of no decisions refusing to grant an
extension to serve under Rule 4(m) solely
on the ground that denying the defendant
the benefit of the rumiing of the statute of
limitations amounts to cognizable prejudice
IV. Conclusion
For the foregoing reasons, Defendant's Motion to
Dismiss will be denied. FN3
FN3. Plaintiff has also moved for leave to
file a Sur-Reply with respect to
Defendant's Motion to Dismiss. Because
the Court will deny the Motion to Dismiss,
this latter Motion will be denied as moot.
E.D.Pa.,2004.
Steele v. HCI Direct
Not Reported in F.Supp.2d, 2004 WL 1699611
(E.D.Pa.)
Briefs and Other Related Documents (Back to top)
· 2:02cv04347 (Docket) (Jun. 28, 2002)
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