Opinion
Civil Action No. 1:99cv302-D-D
June 27, 2000
OPINION
Before the court is the motion of Defendant Davidson Ladder Company for dismissal pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Upon due consideration, the court finds that the motion should be denied.
The gravamen of the Defendant's motion to dismiss arises under Rule 4(m), relating to the timeliness of service, rather than insufficiency of the manner or means of service of process. Thus, the court will not address the motion as one brought under Rule 12(b)(5).
Factual and Procedural History
On September 7, 1999, Plaintiffs William Henson and Cheryl Henson commenced this cause of action in the Circuit Court of Lee County, Mississippi, naming as Defendants Lowe's Home Centers, Inc. and Davidson Ladder Company. The Complaint seeks redress for injuries sustained by William Henson on September 9, 1996, caused by an allegedly defective ladder which Plaintiffs contend was manufactured by Defendant Davidson and sold by Defendant Lowe's.
At the time of the filing of their Complaint, Plaintiffs also filed a Motion to Extend Time for Service of Process to effectuate service upon Davidson. This motion was not ruled upon by the state court prior to October 5, 1999, when Lowe's removed the cause of action to this court.
Plaintiffs did, however, successfully serve Lowe's prior to the filing of the notice of removal. The motion remained on this court's docket until February 24, 2000, at which time Magistrate Judge Jerry A. Davis conducted a Case Management Conference and granted the Plaintiffs' motion to allow service of process on Davidson. See Order dated February 24, 2000 (staying cause for sixty days to allow service of process on Davidson Ladder Co.). On April 25, 2000, a summons was issued for Davidson, and on June 2, 2000, the Defendant filed an Answer to the Complaint.
Discussion
Rule 4(m) of the Federal Rules of Civil Procedure provides:
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.
Ordinarily, Rule 4(m) provides a plaintiff with 120 days from the date the complaint is filed to effectuate service of process upon a defendant. In the context of removal, however, some courts maintain that the 120-day period does not commence until the date the case is removed to federal court. See Ritts v. Dealers Alliance Credit Corp., 989 F. Supp. 1475, 1478 (N.D.Ga. 1997) (citing cases authorizing 120-day period beginning on date action removed to federal court); Purvis v. Jenkins, No. Civ. A. 97-0263, 1998 WL 290212, at *3 (E.D.La. June 2, 1998) (defendant should have been served within 120 days after removal to federal court); Randolph v. Hendry, 50 F. Supp.2d 572, 579-80 (S.D.W. Va. 1999) (recognizing that federal court does not obtain an interest in the action — and cannot therefore dictate the terms of service — until notice of removal is filed); G.G.G. Pizza, Inc. v. Domino's Pizza, Inc., 67 F. Supp.2d 99, 102 (E.D.N.Y. 1999) (concluding that 120-day period for service in removed case runs from date of notice of removal).
Although this cause was originally filed in state court, the language of Rule 81(c) of the Federal Rules of Civil Procedure requires application of the federal rules to procedures after removal. Rule 81(c) provides in pertinent part:
These rules apply to civil actions removed to the United States district courts from the state courts and govern procedure after removal.
Although neither this court, the Fifth Circuit, nor the United States Supreme Court has decisively adopted this standard, other district courts in this circuit have implicitly recognized it. See Hunt v. Smith, 67 F. Supp.2d 675, 684 (E.D.Tex. 1999); Purvis, 1998 WL 290212, at *3. Though not controlling authority, the court finds persuasive the district court's rationale in Randolph:
The Court recognizes that the potential prejudicial impact of the Court's calculations will be borne by future defendants who are not served within the time period set forth under state law and who therefore have state procedural justification for dismissal. Placement of the burden on that rare defendant's shoulders is proper, however, because it is that defendant who makes the decision to remove the case to federal court and restarts the clock. Furthermore, restarting the clock for service upon removal eases a terribly unfair burden that could otherwise befall a plaintiff. That is, if the Court's calculations are not the law, then a plaintiff filing a complaint in a state that allows for service beyond 120 days — a plaintiff to whom state law might give a deadline of 180 days, for example — could find his case quickly removed by the defendant and dismissed by the federal court prior to the passing of the state deadline for violation of federal procedural requirements that mandate service in federal cases within 120 days. That untenable result would force cautious plaintiffs to abandon their state-created right to delay service beyond 120 days out of fear that federal procedural law might one day be applied retroactively to their case after the defendant's unilateral act of removal.50 F. Supp.2d at 579-80.
In accordance with the above rationale, this court holds that where a defendant has not been served in a case removed to federal court, the requirement under Rule 4(m), that service of the summons and complaint be made within 120 days after the filing of the complaint, shall be modified to commence with the filing of the notice of removal. In the instant case, Defendant Lowe's filed a notice of removal in this case on October 5, 1999. Plaintiffs, therefore, had 120 days from that date to serve the Complaint upon Davidson. This was not accomplished.
Under Rule 4(m), the burden is on the plaintiff to show cause why service was not effected timely and thus why the suit should not be dismissed. McGinnis v. Shalala, 2 F.3d 548, 550 (5th Cir. 1993). Although the Fifth Circuit has not specifically defined good cause in this context, current jurisprudence consistently holds that good cause is more than simple inadvertence, mistake or ignorance and may rather be characterized as excusable neglect. Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985). Moreover, "inadvertence or mistake of counsel or ignorance of the rules usually does not suffice," and "some reasonable basis for noncompliance within the time specified" is necessary to establish good cause. Id.; see also McDonald v. United States, 898 F.2d 466, 467-68 (5th Cir. 1990).
In opposing the Defendant's motion to dismiss, Plaintiffs allege that they made reasonable and diligent efforts to have process served on the Defendant, and in support thereof submit an affidavit of James D. Moore, attorney for the Plaintiffs, attesting to his efforts to locate a registered agent for service of process. While the court would ordinarily find this sufficient to establish good cause for not satisfying the requirements of Rule 4(m), here, the delay was principally the result of court error and Plaintiffs were not required to advance any proof of good cause.
From the date this cause was removed to federal court Plaintiffs had a pending motion for an extension of time to effectuate service of process upon Davidson. Upon removal, the motion presumably went unnoticed and was not promptly placed on the court's calendar. At the February 24, 2000 Case Management Conference, which was conducted more than120 days from the date of the notice of removal, the Magistrate Judge addressed the motion and stayed the case for sixty days specifically to allow service of process upon Davidson. This court's oversight, in not addressing the motion prior to the expiration of the 120-day period, may in no way operate as a basis for dismissing Plaintiffs' Complaint. During the pendency of the Plaintiffs' motion, the 120-day period was effectively tolled until the Magistrate Judge granted the extension of time.
The Defendant's assertions that Plaintiffs did nothing to preserve their claims, sought no extension, and that the Magistrate Judge's February 24, 2000, Order "did not extend time for service, but merely stayed pre-discovery requirements under Federal Rules," push the limits of zealous litigation. The court strongly advises both parties to thoroughly review the docket and all prior orders before seeking relief from this court. Although the Plaintiffs would have been wise to bring the motion to the court's attention, such conduct is not sanctionable and Davidson shall not be allowed to benefit from the error.
In conjunction with the above argument, Davidson contends that Plaintiffs' claims are barred by the applicable statute of limitations. In a federal case, the filing of a complaint with the court commences the case and tolls any applicable statute of limitations. Therefore, were the court to find service to have been invalid, the limitations period would have expired and Plaintiffs would be subject to the adverse effects of the lapsed limitations period. However, because the court finds that Plaintiffs' Complaint was timely served, Davidson's limitations argument must also fail.
A separate order in accordance with this opinion shall issue this day.
ORDER
Pursuant to an opinion issued this day, it is hereby ORDERED that:Defendant Davidson Ladder Company's motion to dismiss is DENIED.