United States District Court, Eastern District of Tennessee, Knoxville
KATHLEEN M. SYDNEY, Plaintiff,
COLUMBIA SUSSEX CORPORATION, COLUMBIA SUSSEX MANAGEMENT, LLC, COLUMBIA PROPERTIES KNOXVILLE, LLC, d/b/a KNOXVILLE MARRIOTT HOTEL, Defendants.
MEMORANDUM OPINION AND ORDER
THOMAS A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE.
This civil action is before the Court on the Motion to Dismiss by Columbia Sussex Corporation, Columbia Sussex Management, LLC, and Columbia Properties Knoxville, LLC, doing business as Knoxville Marriott Hotel (“defendants”) [Doc. 5]. Plaintiff responded and moved for an extension for service of process [Doc. 12], to which defendants replied [Docs. 13, 14]. The Court has carefully considered the matter and, for the reasons stated herein, will grant defendants’ motion to dismiss.
According to the complaint, plaintiff fell on the premises of the Knoxville Marriott Hotel on May 4, 2012 [Doc. 1-2 ¶¶ 7, 10]. Almost a year later, on May 3, 2013, plaintiff commenced this action against defendants in the Circuit Court for Knox County [Doc. 6 p. 1; Doc. 12-1 ¶ 4]. Process was issued at that time [Doc. 6 p. 1; Doc. 12-1 ¶ 4]. Defendants’ third-party administrator received a courtesy copy of the complaint on or about May 6, 2013 [Doc. 6 p. 1], but as plaintiff concedes, defendants were never formally served with process [see Doc. 12-1 ¶ 11]. Defendants filed a Notice of Removal on June 5, 2013, which stated, “As of the filing of this notice of removal, service of process has not yet been made on the Defendants” [Doc. 1 ¶ 4]. The docket remained inactive for eleven months, until defendants’ filed their motion to dismiss on May 9, 2014, for insufficient service of process.
Defendants claim they are entitled to dismissal of all plaintiff’s claims because the time for service under either federal or state law “has long since passed” [Doc. 6 p. 2]. Plaintiff asserts that good cause exists to extend the time for service, citing an affidavit by her attorney detailing the attorney’s health and case management issues [See generally Docs. 12, 12-1]. Plaintiff’s attorney concluded, “[b]ased upon my own personal, physical condition, and due to the change in our office technology, I did not realize that the Defendants had not formally been served with the process, which had been issued by the Knox County Circuit Court, until the filing of Defendants Motion to Dismiss” [Doc. 12-1 ¶ 11].
Despite the attorney’s realization and the filing of the motion to dismiss, plaintiff did not attempt to serve defendants, according to defendants’ subsequent filings [See Doc. 13 p. 5 (stating in their response brief, “despite multiple . . . filings clearly demonstrating that service had not been effectuated, the plaintiff, [as of July 14, 2014], has still not served the Defendants, nor has she taken any effort designed to effectuate service”); Doc. 14 p. 2 n.1 (stating in their notice of supplemental authority, on August 14, 2014, “it is undisputed that [plaintiff] has never served process of any kind on Defendants in this action”)].
II. Standard of Review
Under Rule 12(b)(5) of the Federal Rules of Civil Procedure, a complaint may be dismissed for “insufficient service of process.” “Due process requires proper service of process for a court to have jurisdiction to adjudicate the rights of the parties.” O.J. Distrib., Inc. v. Hornell Brewing Co., 340 F.3d 345, 353 (6th Cir. 2003). A plaintiff is responsible for serving the summons and complaint in accordance with Federal Rule of Civil Procedure 4 and within the time allowed by Rule 4(m). See Fed. R. Civ. P. 4(c)(1). “[A]ctual knowledge and lack of prejudice cannot take the place of legally sufficient service.” LSJ Inv. Co. v. O.L.D., Inc., 167 F.3d 320, 324 (6th Cir. 1999).
Under Rule 4(m), “[i]f a defendant is not served within 120 days after the complaint is filed, the court . . . must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed.R.Civ.P. 4(m). However, “if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Id.
It is undisputed that, as of July 1, 2014, long after the expiration of Rule 4(m)’s 120-day deadline, plaintiff had not served process on any of the defendants [See Doc. 12-1 ¶¶ 10, 11]. Accordingly, the Court must determine whether plaintiff has shown good cause for the failure to effect service, and, if not, to either dismiss the action or direct that service be effected within a specified time. Stewart v. Tenn. Valley Auth., 238 F.3d 424, 2000 WL 1785749, at *1 (6th Cir. Nov. 21, 2000) (citing Fed.R.Civ.P. 4(m)). “In other words, the court has discretion to permit late service even absent a showing of good cause.” Id. (citing Henderson v. United States, 517 U.S. 654, 662 (1996)); see also DeVane v. Hannah, No. 3:11-cv-00389, 2011 WL 5916433, at *2 (M.D. Tenn. Nov. 28, 2011) (observing that Sixth Circuit language stating that dismissal is mandatory absent good cause “originated based on a prior version of Rule 4(m), then Rule 4(j), which did not include the option for a court to order that service be made within a specified time as an alternative to dismissal”); Fed.R.Civ.P. 4 advisory committee’s note (stating that the 1993 amendment “authorizes the court to relieve a plaintiff of the consequences of an application of [Rule 4(m)] even if there is no good cause shown”); Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1132 (11th Cir. 2005) (noting the Supreme Court’s and other circuits’ interpretations of the advisory committee’s note on Rule 4 and holding, “today we join our sister circuits and hold that Rule 4(m) grants discretion to the district court to extend the time for service of process even in the absence of a showing of good cause”).
“Good cause requires at least excusable neglect, ” Stewart, 2000 WL 1785749, at *1 (citing Moncrief v. Stone, 961 F.2d 595, 597 (6th Cir. 1992)), “as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice, ” Moncrief, 961 F.2d at 597 (quoting Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985)); see also Friedman v. Estate of Presser, 929 F.2d 1151, 1157 (6th Cir. 1991) (“[C]ounsel’s inadvertent failure or half-hearted efforts to serve a defendant within the statutory period does not constitute good cause.”). “And just as a lawyer’s inadvertence cannot constitute good cause, neither can inadvertence on the part of the lawyer’s clerical staff.” Davis v. Brady, 9 F.3d 107, 1993 WL 430137, at *3 (6th Cir. Oct. 22, 1993). Diligent and reasonable efforts to serve process, however, may warrant a finding of good cause. See Habib v. Gen. Motors Corp., 15 F.3d 72, 73–75 (6th Cir. 1994) (reversing district court’s dismissal for lack of good cause when pro se litigant “diligently attempted to effect service” and ultimately effected service three months after the expiration of Rule 4(m)’s 120-day limit).
Here, the Court does not find good cause to extend the time for plaintiff to effect service. Plaintiff had until October 3, 2013—that is, 120 days after the case was removed to this Court—to effect service. See RDLG, LLC v. RPM Group, LLC, Nos. 1:10cv204, 1:10cv233, 2010 WL 6594916, at *6 (W.D. N.C. Dec. 21, 2010) (“Other courts that have addressed this issue have also held that the 120-day time period for service of process in a removal action runs from the date of the removal, not the date that the state court complaint was originally filed.”).
Plaintiff’s counsel explains that he believed “Defendant[s’] removal of this action was in response to being served with process in the underlying Tennessee state court action” [Doc. 12 p. 2] and that he “did not realize that the Defendants had not formally been served with the process, which had been issued by the Knox County Circuit Court, until the filing of Defendants Motion to Dismiss” [Doc. 12-1 ¶ 11]. These statements sound in inadvertence, mistake, and possibly ignorance of the rules of service, not good cause. Paragraph four of defendants’ Notice of Removal states, “As of the filing of this notice of removal, service of process has not yet been made on the Defendants” [Doc. 1 ¶ 4]. And removal to federal court does not necessarily indicate successful service of process. Cf. ...