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dismissing the plaintiff's complaint where the plaintiff untimely served the defendant after the expiration of the state's mandated service period because “all relevant conduct with respect to plaintiff's untimely service of the petition occurred prior to removal”
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CIVIL ACTION No. 02-3778, SECTION: 1/53
September 24, 2003
ORDER AND REASONS
Defendant, Howmedica Osteonics Corp., moves for dismissal of plaintiffs complaint, pursuant to Fed.R.Civ.P. 12(b)(5), for insufficiency of service of process and it requests a finding that under Louisiana law, prescription was not interrupted due to plaintiffs bad faith failure to request service. For the following reasons, defendant's motion is GRANTED IN PART AND DENTED IN PART.
Rec. Doc. No. 11.
BACKGROUND
On July 3, 2003, plaintiff, John Oiler, filed a petition in the Orleans Parish Civil District Court, State of Louisiana, alleging that the negligence of defendants, Biomet Orthopedics, Inc. ("Biomet") and Howmedica Osteonics Corp. ("Howmedica"), caused the death of his wife, Debra Ann Oiler. Plaintiff alleges that defendants manufactured, produced, and/or distributed materials and/or the prosthesis used in a failed hip replacement surgery and that Ms. Oiler's death resulted from complications from surgery. At the bottom of the state court petition for damages, plaintiff included a request to "Please Hold Service." Concurrently with the filing of plaintiffs state court petition, plaintiff contacted the Louisiana Commissioner of Administration and requested that a medical review panel be convened to investigate plaintiffs allegations of medical malpractice against various Louisiana health care providers arising out of the hip replacement surgery and Ms. Oiler's subsequent death.
Rec. Doc. No. 11, Ex. "A", Petition for Damages ("Pl. Pet."), ¶ VIII. The state court petition names Biomet, Howmedica, ABC Manufacturing Company and ABC Insurance Company as defendants. PL Pet., II. The motion to dismiss is filed on behalf of Howmedica only.
P1. Pet. ¶¶ IV-VII.
Rec. Doc. No. 11, Pl. Pet., at 4.
Rec. Doc. No. 3, PL Mem. in Support of Mot. to Remand, Ex. A, Letter to Commissioner of Administration, dated July 3, 2002. Louisiana law requires that medical malpractice claims be administratively reviewed by a medical review panel prior to commencement of a lawsuit against a Louisiana health care provider.
No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this Section.
La. R.S. 40:1299.47 B(1)(a)(i).
Howmedica was served with the petition on December 17, 2002. On December 20, 2002, defendants timely removed this action to this Court alleging jurisdiction based on diversity of citizenship. 28U.S.C. § 1332. In its answer to plaintiffs complaint, Howmedica properly preserved its defense that service of plaintiffs petition was insufficient. Howmedica moves to dismiss plaintiffs petition on the grounds that under Louisiana law, plaintiff failed to timely serve the petition and, further, that plaintiffs failure to do so was the result of bad faith.
Rec. Doc. No. 11, Ex. "B", ¶ 2.
Rec. Doc. No. 1, Notice of Removal, ¶¶ 4-6.
Rec. Doc. No. 5, at 1-2. See Fed.R.Civ.P. 12(h)(1)(B).
LAW AND ANALYSIS
A. Applicability of State Procedural Law to P re-Removal Service of Process.The state law pursuant to which service was made governs this Court's determination of the sufficiency of service made prior to removal. See Freight Terminals, Inc. v. Ryder System, Inc., 461 F.2d 1046, 1052 (5th Cir. 1972) ("[T]he district court must look to state law to ascertain whether service was properly made prior to removal. . . ."); see also Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119. 1122 (7th Cir. 2001) (applying Illinois law mandating dismissal due to lack of diligence in effecting service of process); Marshall v. Warwick, 155 F.3d 1027, 1033 (8th Cir. 1998) (applying South Dakota law); Osborne v. Sandoz Nutrition Corp., 67 F.3d 289, 1995 WL 597215, **2 (1st Cir. 1995) (unpublished opinion) (noting the "general rule" that state law governs the sufficiency of service of process prior to removal); Maureau v. United Technologies Carrier Corp., 1998 WL 12238, *2 (E.D.La.) (Vance, J.) (citing lee v. Beaumont, 12 F.3d 933, 936-37 (9th Cir. 1993) and Alien v. Ferguson, 791 F.2d 611, 616 n. 8 (7th Cir. 1986)); see generally Charles A. Wright Arthur R. Miller, Federal Practice and Procedure, Civil 3d. § 1082 (West 2002 Supp. 2003).
The Louisiana Code of Civil Procedure requires that a defendant be served with the petition within ninety days of the filing of the petition. La. Code Civ. P. art 1201(C). If the petition is not timely served, the Louisiana Code of Civil Procedure requires that the action be involuntarily dismissed without prejudice unless good cause is shown why service could not have been timely requested. La. Code Civ. P. art 1672(C). "Mere confusion regarding a party's name or inadvertence in requesting service on the part of the plaintiffs counsel is not a sufficient basis for good cause." Norbert v. Loucks, 791 So.2d 1283, 1285 (La. 2001) (citing Patterson v. Jefferson Davis Parish Sell. Bd., 773 So.2d 297 (La.App. 3d Cir. 2000) and Lewis v. Spence, 772 So.2d 354 (La.App. 3d Cir. 2000)). Therefore, plaintiffs may not prevent the involuntary dismissal of their claims where the failure to timely request service of the petition is due to "inadvertence and mistake or excusable neglect." Lewis, 772 So.2d at 355; see also Anderson v. Norfolk S. Ry. Co., 814 So.2d 659, 664 (La.App. 4th Cir. 2002) (dismissing petition and finding no good cause where plaintiff withheld service and miscalculated the ninety day period).
La. Code Civ. P. art. 1201(C) provides:
Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. The defendant may expressly waive the requirements of this Paragraph by any written waiver.
In the instant motion, defendant asserts that plaintiff deliberately withheld service until December 17, 2002. Plaintiff does not dispute that process was, in fact, served on Howmedica on December 17, 2002. However, plaintiff asserts that he requested service on Howmedica on December 3, 2002. The Court need not resolve this discrepancy because, in any event, there is no dispute between the parties that service was requested more than ninety (90)days after plaintiffs lawsuit was initially filed in state court.
La. Code Civ. P. art. 1672(C), provides:
A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C), upon contradictory motion of that person or any party or upon the court's own motion, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.
Plaintiff does not argue that the failure to timely serve the petition on Howmedica should be excused for good cause. Rather, plaintiff admits that service of the petition was not timely requested clue to a "possibly" mistaken belief, on plaintiffs former counsel's part, that service of the petition was not required until the completion of the medical review panel proceedings. It is clear that a mistaken belief in the necessity of service of the petition does not constitute good cause for untimely service of the petition. Accordingly, plaintiffs service of the petition, effected approximately two months after the expiration of the ninety-day time limit allowed under La. Code Civ. P. 1201(C), was insufficient under Louisiana law.
Defendant argues that plaintiffs failure to timely request service mandates a dismissal of plaintiffs petition without prejudice pursuant to La. Code Civ. P. art. 1672(C). See Jacobs v. Louisiana Farm Ins. Companies, 815 So.2d 858, 859 (La.App. 3d Cir. 2002) (noting that article 1672(C) "requires" dismissal without prejudice); Bolner v. Daimler Chrysler Corp., 820 So.2d 1252, 1254 (La.App. 5th Cir. 2002) (holding that a petition "must be dismissed" if not served within ninety days); see also Bordelon v. Med. Cir. of Baton Rouge, 836 So.2d 407, 411 n. 9 (La.App. 1st Cir. 2001) (collecting cases). Defendant asserts that because service of the petition was untimely and not justified by good cause, this Court should dismiss plaintiffs petition pursuant to Louisiana procedural law because service occurred prior to the removal of this action to federal court.
The Seventh Circuit Court of Appeals has held that when service of process has been completed prior to removal, Rule 4(m) does not govern the consideration of a motion to dismiss that is based on the untimeliness of that service. Romo, 250 F.3d at 1122 (citing Fed R. Civ. P. 81(c) and stating, "[t]he Federal Rules make clear that they do not apply to filings in state court, even if the case is later removed to federal court"). The Seventh Circuit further held that an Illinois procedural rule, mandating dismissal of an action without prejudice, may be applied by the federal courts to pre-removal conduct. Id. at 1122. The Court concluded by noting that, f'[t]o hold otherwise would render the federal courts powerless to address the timeliness of service after removal." Id.; see also Eccles v. Nat'l Semiconductor Corp., 10 F. Supp.2d 514, 519-20 (D. Md. 1998) (applying Maryland law governing dismissal to pre-removal failure to timely serve process); McKenna v. Beezy, 130 F.R.D. 655, 656 (N.D. III. 1989) ("Because this action was originally filed in state court and the conduct in question occurred prior to removal, this court may properly apply Illinois law governing dismissal for lack of diligence.").
Rule 4(m) provides, in relevant part:
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.
The Illinois rule at issue in Romo provided:
Dismissal for Lack of Diligence. If the plaintiff fails to exercise reasonable diligence to obtain service on a defendant, the action as to that defendant may be dismissed without prejudice, with the right to refile if the statute of limitation has not run. The dismissal may be made on the application of any defendant or on the court's own motion.
Ill. Sup.Ct. Rule 103(b).
On the particular facts of this case, this Court adopts the Seventh Circuit's reasoning and, in addition, finds persuasive the district court's rationale in Morton v. Meagher, 171 F. Supp.2d 611 (E.D.Va. 2001):
On this record, service was not effected within the time frame prescribed by state statute and, therefore, the case was "dead" before it was removed to federal court. The Report and Recommendation even concludes, and correctly so, that a Virginia state court would have dismissed the case had it not been removed. It is contrary to the correlative doctrines of comity and federalism to allow a case that would be dead under state law to be revived upon removal by a federal court applying the same state law that would have led to the termination of the case in the state court.Id. at 615.
The Morton plaintiff argued that once a case is removed to federal court, 28 U.S.C. § 1448 allows a federal court to correct deficient service of process. The district court disagreed, stating:
. . . § 1448 does not retroactively extend the time limits prescribed by state law in cases where service was untimely before the action is removed to federal court. Nothing in the text, or the legislative history, of § 1448 permits it to serve as a phoenix for the ashes of an action that could not have survived in the state courts. Morton, 171 F. Supp.2d at 615 (emphasis in original).
In the present case, all relevant conduct with respect to plaintiffs untimely service of the petition occurred prior to removal. There is no suggestion that there was any other defect in the manner of service or in the form of the petition which would justify effecting new service of process. Therefore, failure to apply Louisiana's procedural law governing dismissal would ignore plaintiffs procedural deficiency in state court. See Osborne, 1995 WL 597215, at **2 (applying Massachusetts rule of civil procedure mandating dismissal absent good cause for untimely service). Moreover, in these circumstances, failure to apply the La. Civ. Code 1672(C) governing the consequences of untimely service would render state law analysis regarding sufficiency of service superfluous. Consonant with the general rule that state law governs the sufficiency of service of process prior to removal, this Court holds that Howmedica is entitled to a dismissal of plaintiffs petition without prejudice.
B. Bad Faith Failure to Timely Serve Process
In 1997, the Louisiana legislature simultaneously enacted La. Code Civ. P. 1672(C), discussed above, and La. Rev. Stat. 9:5801. The latter statute provides in full:
§ 5801. Involuntary dismissal; failure to timely request service of citation
Notwithstanding the provisions of Civil Code Article 2324(C), interruption is considered never to have occurred as to a person named as a defendant who is dismissed from a suit because service of citation was not timely requested and the court finds that the failure to timely request service of citation was due to bad faith. Nonetheless, as to any other defendants or obligors, an interruption of prescription, as provided in Civil Code Article 3463, shall continue.
La. Civ. Code art. 3463 provides:
An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial.
La. Civ. Code an. 2324(C) provides:
Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.
In enacting this statute, the legislature recognized that a plaintiff should not benefit from the interruption of prescription if the failure to timely request service is motivated by an improper purpose. See Jacobs, 815 So.2d at 861 (noting that La. Rev. Stat. 9:5801 "provides a safeguard against a party who might consider using the filing delays and refilings, without effective service, as a strategy"). Prescription is not interrupted pursuant to La. Rev, Stat. 9:5801, however, if the record merely demonstrates that failure to timely serve a petition is due to inadvertence or mistake. See Futrell v. Cook, 805 So.2d 325, 329 (La.App. 4th Cir. 2001) (holding prescription was not interrupted because "the record as it currently exists supports no finding of bad faith . . . only mistake or inadvertence). The absence of "good cause" for failure to timely request service under La. Civ. Code 1672(C) is not, therefore, equivalent to a finding of "bad faith" for purposes of La. R.S. 9:5801. Johnson v. Brown, 851 So.2d 319, 327 (La.App. 4th Cir. 2003) (citing Futrell, 805 So.2d at 329).
In this case, Howmedica vigorously argues that plaintiff and plaintiffs counsel deliberately withheld service in furtherance of a calculated strategy to prevent Howmedica from receiving notice of this action, to preclude Howmedica from removing the action to federal court, and to forestall pre-trial discovery. Equally vigorously, plaintiffs counsel maintains that due to the Louisiana requirement that medical malpractice claims be administratively reviewed prior to filing a lawsuit, plaintiffs former attorney (who filed the petition in state court) believed that Louisiana law did not require service of the petition on the named defendants in this action until the conclusion of those proceedings, i.e., when all parties against whom plaintiff had claims arising from Ms. Oiler's death could be joined in one action. Plaintiffs counsel further asserts that when she assumed responsibility for plaintiffs case from plaintiffs former counsel and realized that the defendants had not been served with the petition, she immediately took steps to request service of the petition on defendants, believing that plaintiffs former attorney's conclusion about the requirement of timely service was possibly incorrect.
Howmedica's argues that the evidence of plaintiff s bad faith is 1) that plaintiff requested the sheriff to "Please Hold Service" in his petition for damages; 2) that its agent for service of process was registered with the Louisiana Secretary of State and accessible to plaintiff at the time this action was filed; and 3) that plaintiffs arguments to this Court, in his reply brief to defendants' opposition to remand, reveal a strategy to delay litigation and prevent removal of this action. In sum, other than the fact of deliberately withheld service, which plaintiff does not deny, Howmedica's only evidence to support its contention that plaintiff and plaintiffs counsel acted in bad faith is plaintiffs legal argument made in support of his motion to remand.
Plaintiffs motion to remand this action was denied by this Court. See Rec. Doc. No. 21.
The Court finds that plaintiffs arguments and statements made in support of remand have little or no probative value with respect to plaintiffs pre-removal conduct. Obviously, had plaintiff wanted to delay litigation in this matter until the conclusion of the medical review panel proceedings and thereby prevent Howmedica from having notice of the action, as Howmedica insists, plaintiff would have done so. Instead, the record shows that Howmedica was served with the petition on or about December 17, 2002, at a time when Howmedica, by its own admission, did not have notice of the action. Furthermore, Howmedica does not challenge plaintiffs assertion that subsequent to the petition being served, plaintiff has been forthcoming in responding to Howmedica's informal discovery requests. Moreover, the Court notes that when this action was initially filed in state court, plaintiff did not attempt to join any non-diverse parties to this action which might have prevented federal jurisdiction of this action. In short, Howmedica has not presented sufficient evidence to this Court to support a finding that plaintiff acted in bad faith in failing to request timely service of the petition. It presents no evidence, by way of affidavit or deposition testimony, to refute plaintiffs contention that the failure to serve the petition was simply the result of mistake.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of defendant, Howmedica Osteonics Corp., is GRANTED IN PART, and the plaintiffs claims against Howmedica are DISMISSED WITHOUT PREJUDICE. To the extent that the motion of defendant seeks a dismissal with a finding that prescription has not been interrupted due to bad faith failure to timely request service, the motion is DENIED.