Bolus v. Fleetwood RV, Inc.
Bolus v. Fleetwood RV, Inc.
Opinion of the Court
MEMORANDUM OPINION AND ORDER
This matter is back before the Court on Defendant Cummins Atlantic, LLC’s
After the Magistrate Judge recommended that Defendants’ motions to dismiss be granted and Mr. Bolus’s motion be denied as moot, Mr. Bolus filed an affidavit which this Court considered in its determination that sanctions less severe than dismissal are appropriate. (Docs. # 56, 57, 61.) As a result, Mr. Bolus was given thirty days to file a response to Fleetwood RV, Inc.’s motion to dismiss and explain why no such response was filed in a timely fashion, the parties were given thirty days to address the Court’s authority to grant an extension for Mr. Bolus to re-serve Defendants,
I.
First, it was presumed that Mr. Bolus had not responded to Tom Johnson’s motion to dismiss because, as docketed, Mr. Bolus’s opposition to the motions to dismiss ap
II.
Next, the Court asked the parties to address whether it has authority to permit Mr. Bolus to re-serve Defendants, particularly in light of the fact that the time for service has expired.
A.
Mr. Bolus argues that “[t]he law is in a considerable state of uncertainty as to whether or not there must be re-service in the transferee district, at least where no answer has been filed that raises personal jurisdictional or service issues.” (Doc. # 50 at 4.) Yet, he then acknowledges that “it would be the wiser course for plaintiff immediately to attempt re-service on each of the defendants!,]” (id. at 6), a course of action that Mr. Bolus should have taken long before he moved to do so.
In contrast to Mr. Bolus’s description of the state of the law on the issue of re-service, the Fourth Circuit has stated, albeit in an unpublished decision, that re-service in the transferee court is required at least when service in the transferor court was unperfected. Harding v. Williams Property Co., 163 F.3d 598 (Aug. 31, 1998) (unpublished).
Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied. ‘[S]ervice of summons is the procedure by which a court having venue and jurisdiction of the sub*155 ject matter of the suit asserts jurisdiction over the person of the party served.’
Id. (quoting Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987) (quoting Mississippi Publ’g Corp. v. Murphree, 326 U.S. 438, 444-45, 66 S.Ct. 242, 90 L.Ed. 185 (1946))). According to the Harding court, “It follows, then, that previously unperfected personal jurisdiction does not attach in a transferee district court until a summons issued by that court is properly served.” Id. quoted in Hansan v. Fairfax Cnty. Pub. School Bd., No. 1:09CV558(GBL), 2010 WL 1779679, *2-3 (E.D.Va. Apr. 30, 2010) (holding that the “Plaintiffs attempts to serve Defendant were not effective under Rule 4(m) because the District Court of Maryland did not have personal jurisdiction over Defendant”). Therefore, although Harding is an unpublished opinion, re-service on Tom Johnson and Cummins Atlantic, LLC is required.
B.
The issue of whether or not the Court has authority to permit Mr. Bolus to re-serve Tom Johnson and Cummins Atlantic, LLC, particularly in light of the expiration of the time period within which to serve them, is informed by Rule 4(m) of the Federal Rules of Civil Procedure. Rule 4(m) reads:
If a defendant is not served within 120 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.
“[T]o establish good cause, Plaintiff must show that he acted in good faith and demonstrate some form of due diligence in attempting service.” Elkins v. Broome, 213 F.R.D. 273, 276 (M.D.N.C. 2003) (citing 1 James W. Moore et al., Moore’s Fed. Practice § 4.82[1] (3d ed. 2002)). “Mistake of law, misunderstanding of the rules, and inadvertence do not amount to ‘good cause’ under Rule 4(m).” United States ex rel. Shaw Env’t, Inc. v. Gulf Ins. Co., 225 F.R.D. 526, 528 (E.D.Va. 2005).
Mr. Bolus has not presented evidence to support a finding of good cause. As he must, “Plaintiff readily acknowledges that no new efforts to serve process on any of the defendants were made after the case was transferred to this district.” (Doc. # 50 at 3.) Had Mr. Bolus moved for an extension at the time that the case was transferred, which he would have been required to do due to the expiration of the 120 days within which to serve Defendants, it would “generally [be] expect[ed] [that] the transferee court [would] find ‘good cause’ to extend the period for service for an ‘appropriate period.’” Harding, 163 F.3d 598, 1998 WL 637414 *5. He did not.
Nevertheless, even absent a showing of good cause, Rule 4(m) states that a court may “order that service be made within a specified time.” Furthermore, the 1993 Advisory Committee Notes for Subdivision (m) explain that subdivision (m) “... authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause.”
Despite the language of Rule 4(m) and its corresponding Advisory Committee Notes, the Fourth Circuit and its district courts have often considered themselves constrained by the holding in Mendez v. Elliot, 45 F.3d 75, 80 (4th Cir. 1995), that “Rule 4(m) requires that good cause be shown for obtaining an extension.” See e.g., Chen v. Mayor of Baltimore, 292 F.R.D. 288 (D.Md.) (“[D]espite the apparent avalanche of cases within this circuit that question the validity of Mendez, ... [t]his court joins the recent groundswell of cases [from the District of Maryland] affirming the import of the good cause requirement announced in Mendez.”) aff'd, 546 Fed.Appx. 187 (4th Cir. 2013), cert. granted in part, — U.S.-, 135 S.Ct. 475, 190 L.Ed.2d 355 (2014) (granting writ of certiorari on “[w]hether, under Federal Rule of Civil Procedure 4(m), a district court has discretion to extend the time for service of process absent a showing of good cause, as the Second, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits have held, or whether the district court lacks such discretion, as the Fourth Circuit has held?”), cert, dismissed, — U.S.-, 135 S.Ct. 939, 190
However, “[a] careful reading of Mendez reveals that it was governed by the prior version of the rule, Rule 4(j), which clearly required a showing of good cause.” DiPaulo v. Potter, 570 F.Supp.2d 802, 806 (M.D.N.C. 2008). “The Fourth Circuit’s holding in Mendez applies to pre-amendment Rule 4(j), therefore, and does not apply to the applicable rule in this case, the amended Rule 4(m).” Id. at 806-807. “Rule 4(m) now gives district courts discretion to grant extensions of time for service of process without a showing of good cause____” Id. at 807. Therefore, although Mr. Bolus has not shown good cause for his failure to timely serve Tom Johnson and Cummins Atlantic, LLC, the Court has discretion to extend the time for service.
The exercise of the Court’s discretion in this case is not only governed by Rule 4(m), but also by Rule 6(b)(1)(B). Because Mr. Bolus moved to reserve Defendants after the expiration of the 120-day time for service, Rule 6(b) requires him to show excusable neglect for his failure to act before the Court can extend the time for service. While some courts within this circuit have not found it necessary to analyze or apply Rule 6 in these situations, more courts have required a showing of excusable neglect under these circumstances. Compare, e.g., Vantage, 2009 WL 735893, at *3 (“Plaintiff is not required to show excusable neglect pursuant to Rule 6(b) ... because Rule 4(m) envisions that an order to serve the summons and complaint within a particular time would occur after the expiration of the 120-day deadline.”) with Clark v. E.I. Dupont de Nemours & Co., Inc., 86 F.3d 1149, 1996 WL 283321 *1 (4th Cir. May 30, 1996) (unpublished) (“If the request [for an extension of time to for service] is made after the expiration of the 120-day period, the moving party must show that the failure to act ‘was the result of excusable neglect.’ ”) (quoting Rule 6(b) of the Federal Rules of Civil Procedure and affirming the district court’s finding that the plaintiff failed to establish good cause for failing to comply with Rule 4(m) and failed to establish excusable neglect “entitling her to an extension under Rule 6(b)”). “To avoid dismissal under either [Rule 4(m) or Rule 6(b) ], a plaintiff must show good faith and some reasonable basis for the failure to effect service
The determination of whether a party’s inaction is a result of excusable neglect “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 1498, 123 L.Ed.2d 74 (1993)
Here, the facts support a finding of excusable neglect, even though Mr. Bolus’s arguments in support of such a finding fall short.
Unlike cases where a party has outright failed to take any action within the prescribed period of time, Mr. Bolus did serve Defendants with the summons issued by the District of Pennsylvania and the Complaint, which Fleetwood RV, Inc. answered. Because Tom Johnson and Cummins Atlantic, LLC successfully challenged personal jurisdiction causing the case to be transferred to this district, Mr. Bolus and his counsel were faced with a situation in which one defendant had answered the Complaint and
Therefore, the Court will exercise its discretion and permit Mr. Bolus an extension of time within which to re-serve Tom Johnson and Cummins Atlantic, LLC. However, before he is permitted to do so, considering his failure to prosecute the case, he must first pay all three Defendants’ reasonable attorneys’ fees associated with their moving to dismiss due to Mr. Bolus’s failure to prosecute, as ordered below.
III.
The Magistrate Judge detailed in his Recommendation Mr. Bolus’s dilatory conduct in pursuing this case in this District. (See Doc. # 56 at 3-4.) Nevertheless, after considering Mr. Bolus’s affidavit (Doc. # 57), this Court determined in its September 26, 2013 Order that sanctions less severe than dismissal for failure to prosecute are appropriate. (Doc. # 61 at 3.)
After the ease was transferred to this district in August 2012, Mr. Bolus took no action for approximately five months. Consequently, Defendants filed motions to dismiss for failure to prosecute
Mr. Bolus’s conduct, as described above, in addition to his failure to re-serve Tom Johnson and Cummins Atlantic, LLC or timely move to do so, led Defendants to move to dismiss the action, move to continue the scheduled pre-trial conference, respond to Mr. Bolus’s objections to the Magistrate Judge’s Recommendation of dismissal, and respond to this Court’s order to move for sanctions in lieu of dismissal. Despite this, Mr. Bolus maintains that “[it] would not
Having reviewed Fleetwood RV, Inc.’s and Cummins Atlantic, LLC’s requests for sanctions, Mr. Bolus’s response to their requests, the Magistrate Judge’s earlier Recommendation of dismissal, Mr. Bolus’s affidavit, and the relevant facts of the case, it is determined, pursuant to Rule 16(f), that an appropriate sanction in lieu of dismissal for failure to prosecute is for Mr. Bolus to pay Defendants’ reasonable attorneys’ fees incurred in bringing and litigating their motions to dismiss and all matters reasonably stemming therefrom. See Fed.R.Civ.P. 16(f)(1) (“On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney: (A) fails to appear at a scheduling or other pretrial conference; (B) is substantially unprepared to participate — or does not participate in good faith — in the conference; or (C) fails to obey a scheduling or other pretrial order.”); see also Fed.R.Civ.P. 16(f)(2) (“Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses — including attorney’s fees — incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust.”) “ ‘While on the whole Rule 16 is concerned with the mechanics of pretrial scheduling and planning, its spirit, intent and purpose is clearly designed to be broadly remedial, allowing courts to actively manage the preparation of eases for trial.’ ” Burch v. Blue Cross Blue Shield of N.C., No. 1:08CV364, 2009 WL 4950578, *2 (M.D.N.C. Dec. 14, 2009) (quoting In re Baker, 744 F.2d 1438, 1440 (10th Cir. 1984) (en banc)).
IV.
Defendants Fleetwood RV, Inc., Tom Johnson, and Cummins Atlantic, LLC are instructed to file, by July 14, 2015, documentation of the reasonable attorneys’ fees incurred in bringing and litigating their motions to dismiss and all matters reasonably stemming therefrom.
If Mr. Bolus takes issue with any of those submissions, he has until July 29, 2015, to respond. The parties’ filings will then be taken under consideration in drafting an Order directing Mr. Bolus to pay Defendants’ reasonable attorneys’ fees. Although that forthcoming Order will provide specific dates by which fees must be paid, it is anticipated that Mr. Bolus will have thirty days from the date of the Order to pay Defendants’ reasonable attorneys’ fees. Only after Mr. Bolus makes full payment to all Defendants will he be able to serve Tom Johnson and Cummins Atlantic, LLC, which he will have to do within thirty days of making payment.
V.
For the reasons stated herein, the Order and Recommendation (Doc. # 56) is not adopted for reasons stated in this Court’s September 26, 2013 Order (Doc. # 61); Defendant Cummins Atlantic, LLC’s Motion to Dismiss for Failure to Prosecute, Lack of Personal Jurisdiction, and Insufficient Service of Process (Doc. # 36) is DENIED; Defendant Tom Johnson’s Motion to Dismiss for Failure to Prosecute, Lack of Personal Jurisdiction and Insufficient Service of Process (Doe. #39) is DENIED; Defendant Fleet-wood RV, Inc.’s Motion to Dismiss (Doc. # 41) is DENIED; Plaintiffs Motion for Extension of Time Within Which to Re-Serve Defendants (Doc. #48) is GRANTED SUBJECT TO CONDITIONS SET OUT IN THIS OPINION; Defendant Fleetwood RV,
. Pursuant to the March 14, 2013 Text Order, the proper name for this defendant is Cummins Atlantic, LLC, as opposed to Cummins Atlantic, Inc. (Docs. #49 ("Plaintiff's Motion to Amend Complaint to Correct Designation of Parties Defendant") & # 55 ("Plaintiff's Motion to Correct Order Amending Pleadings”).)
. The proper name for this defendant is Tom Johnson Camping Center Charlotte, Inc., as opposed to Tom Johnson Camp Center. (See supra n. 1; Docs. # 49, 55; Text Order (Mar. 14, 2013).)
. Mr. Bolus seeks in his motion an extension of time to re-serve Defendants, but he needs only to re-serve Tom Johnson and Cummins Atlantic, LLC. See infra 154-55.
. According to the record, Tom Johnson did not make any filings in response to the Court's Order. Therefore, it has waived its opportunity to be heard on appropriate sanctions and the issue of re-service.
. With the exception of Mr. Bolus, who directed the Court to his earlier filing in opposition to Defendants’ motion to dismiss, the parties did not actually address the question of the Court’s authority. Instead, Cummins Atlantic, LLC rear-gued its position that Mr. Bolus has not shown good cause, a position supported by Fleetwood RV, Inc. And, as noted above, Tom Johnson failed to respond at all.
. Mr. Bolus attempts to distinguish his case from that of the plaintiff in Harding, noting that the Harding plaintiff never obtained proper service in the transferor court. (Doc. # 50 at 5.) Rather than being a distinction between the two cases, it is actually a similarity despite the factual differences in the two cases, as Mr. Bolus did not perfect service on Tom Johnson or Cummins Atlantic, LLC due to the District of Pennsylvania’s lack of personal jurisdiction over them.
. "A rare opportunity to clarify an important issue and address a split in the circuits has surely been missed.” Harris v. S. Charlotte Pre-Owned Auto Warehouse, LLC, No. 3:14-cv-00307-MOC-DCK, 2015 WL 1893839 *4 (W.D.N.C. Apr. 27, 2015).
. Although the Scruggs court found Henderson persuasive and applied it when it found that the district court had discretion to extend the time for service even without a showing of good cause, the court noted that the plaintiff "made no effort whatever to discuss or argue the import of Henderson at oral argument before this court ... even after the court raised the Henderson dicta sua sponte. Accordingly, [the court] reserve[d] to another day — a day when both parties are prepared at least to address the issue ... — formal adoption of the Henderson dicta as the appropriate construction of Rule 4(m) in [the Fourth] Circuit.” 198 F.3d 237, 1999 WL 957698 *3.
. Although Pioneer addressed the meaning of excusable neglect in the bankruptcy context, courts have applied its explanation of the phrase in non-bankruptcy cases. See, e.g., Tucker v. Chrysler Credit Corp., 149 F.3d 1170 (4th Cir. 1998) (affirming finding of no excusable neglect for the plaintiff's failure to timely respond to a motion to dismiss).
. Mr. Bolus argues that (1) he "reasonably believed and still believes that re-service in North Carolina is not necessary, since service was originally obtained in Pennsylvania;'' (2) "[p]rejudice to the other parties is not identifiable[;]” (3) "[t]he impact on the judicial proceeding will be minimal, because the initial pre-trial conference has been delayed anyway on account of pending motions[;]” and (4) "the reason for delay and whether or not delay was within the control of movant are bound up in the question of whether or not re-service is required anyway[.]" (Doc. # 50 at 7.)
. As of the date of this opinion, however, Mr. Elliott has not withdrawn from the case.
. Tom Johnson and Cummins Atlantic, LLC also moved to dismiss for insufficient service of process and lack of personal jurisdiction because Mr. Bolus had not perfected service. (See Docs. #36, 36, 41.)
. Mr. Elliott responded to the motion to continue, but Mr. Bolus still did not have local counsel.
. Because Mr. Bolus had no local counsel who had made an appearance before this Court by the time Defendants moved to continue the initial pre-trial conference, they could not confer with Mr. Bolus’s local counsel prior to filing their motion. (See Doc. # 43.)
Reference
- Full Case Name
- Robert BOLUS, individually and doing business as Bolus Truck Sales Center v. FLEETWOOD RV, INC., Tom Johnson Camp Center Charlotte, Inc., Cummins Atlantic, LLC
- Cited By
- 7 cases
- Status
- Published