United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION & ORDER
L. Banning, United States District Judge.
Riyadh Adbulhaleem seeks dismissal of Plaintiff Louis
Ranieros' claims against him because service was not
executed upon him within ninety days of the Complaint being
filed, as required by Rule 4(m) of the Federal Rules of Civil
Procedure. (Doc. # 12). The Motion to Dismiss is fully
briefed (Docs. # 14 and 17), and ripe for the Court's
review. The Court has jurisdiction over this matter pursuant
to 28 U.S.C. § 1332. For the reasons that follow,
Defendant's Motion to Dismiss is granted.
FACTUAL AND PROCEDURAL BACKGROUND
personal-injury action was filed on November 7, 2016 in Boone
County Circuit Court. (Doc. # 1-1 at 2). It was subsequently
removed to this Court on December 28, 2016. (Doc. # 1).
Defendant UPS Ground Freight, Inc. (“UPS”) was
served on November 28, 2016. (Doc. # 14 at 2). Defendant
Riyadh Adbulhaleem filed a Motion to Dismiss on July 13,
2017, and at that time, had not yet been served. (Doc. # 12-1
at 1). Plaintiff listed an incorrect address for Defendant
Adbulhaleem on the original summons issued in state court,
but was alerted of that mistake multiple times. Id.
at 2. Defendant UPS provided Defendant Adbulhaleem's
correct address in its Notice of Removal filed on December
28, 2016. Id. Plaintiff was again alerted of the
address error during the Rule 26(f) planning meeting.
Id. at 2-3. In the parties' Joint Rule 26(f)
Report, Plaintiff agreed to re-serve Defendant at the correct
address. Id. at 3. Approximately one month later,
Plaintiff requested and was issued a new summons for
Defendant listing his correct address. Id. However,
despite the issuance of the new summons, Defendant was not
served until July 19, 2017-six days after Defendant filed the
instant Motion to Dismiss. (Doc. # 14 at 1). In sum, nearly
254 days passed between the filing of Plaintiff's
Complaint and the date Plaintiff accomplished service. (Doc.
# 17 at 1-2).
4(m) of the Federal Rules of Civil Procedure requires a
defendant to be served “within ninety (90) days after
the complaint is filed.” If a defendant is not served
within that period, the Rule further provides that:
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 the
Fed. R. Civ. P. 4(m). The first sentence of Rule 4(m)
“gives the Court discretion to dismiss the action or
allow Plaintiffs additional time.” Bradford v.
Bracken Cty., 767 F.Supp.2d 740, 753 (2011). The second
sentence “eliminates the Court's discretion where
good cause is shown.” Id. Thus, the Court must
first determine whether there is good cause for
Plaintiff's failure to timely execute service.
Id. If not, the Court must determine, in its
discretion, whether to dismiss the action or allow Plaintiff
additional time to execute service. Id. Plaintiff
bears the burden of showing good cause under Rule 4(m).
Id. (citing Habib v. Gen. Motors Corp., 15
F.3d 72, 73 (6th Cir. 1994)).
argues that the failure to serve the summons on Defendant
Adbulhaleem after being informed of the correct address was
“excusable neglect.” (Doc. # 14 at 4). Plaintiff
further asserts that “his honest efforts at service
show the requisite good cause.” Id. Should the
Court disagree, Plaintiff contends that the proper remedy is
to extend the deadline, as courts have discretion to do when
no good cause has been shown. Id. According to
Plaintiff, extending the deadline will resolve the issue
because Defendant has now been served. Id. Plaintiff
further asserts that Defendant Adbulhaleem has not been
prejudiced by the delay because he was aware of the action
despite not having been served. Id. On the other
hand, Plaintiff argues that by dismissing the case, there
will be prejudice to Plaintiff because the statute of
limitations has now expired, leaving Plaintiff unable to
refile against Defendant. Id. Plaintiff's
arguments are unpersuasive and unsupported by established
4(m) does not define good cause, but the Sixth Circuit has
required “at least excusable neglect.”
Stewart v. Tenn. Valley Auth., 238 F.3d. 424, 2000
WL 1785749, at *1 (6th Cir. 2000). The “excusable
neglect standard” is strict and can only be met in
extraordinary cases. Turner v. City of Taylor, 412
F.3d 629, 650 (6th Cir. 2005). In assessing a claim of
excusable neglect, ‘the proper focus is upon whether
the neglect of [the parties] and their counsel was
excusable.” McCurry ex rel. Turner v. Adventist
Health Sys./Sunbelt, Inc., 298 F.3d 586, 594 (6th Cir.
2002) (alteration in original) (quoting Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507
U.S. 380, 397 (1993)). Plaintiff has failed to show good
cause, excusable neglect, or a legitimate reason for why this
Court should exercise its discretion and allow for an
extension of time.
Plaintiff's own words, the “delay was not
intentional or dilatory; Plaintiff simply inadvertently
failed to have the new summons served once it was
issued.” (Doc. # 14 at 3). Plaintiff admits that it was
not until Defendant filed the Motion to Dismiss that
“Plaintiff realized the error, and immediately moved to
serve the Defendant at the given address.” Id.
The Court finds nothing compelling about these circumstances
that would warrant excusing Plaintiff's failure to comply
with the time limits imposed by Rule 4(m). In fact, in in
DeLong v. Arms, 251 F.R.D. 253, 255 (E.D. Ky. 2008),
the court determined that “mere oversight” was
not sufficient to constitute good cause to extend the time
for service of process. Thus, Plaintiff's “mere
oversight” in failing to execute the summons is neither
good cause nor excusable neglect and the Court finds no
reason to exercise its discretion and allow an extension of
time for service.
Plaintiff's argument that he will prejudiced by
Defendant's dismissal is not compelling. Rule 4(m)
requires dismissal without prejudice, but because the statute
of limitations has expired for Plaintiff's claim,
dismissal will be in effect, with prejudice since Plaintiff
will be precluded from filing a new action against Defendant.
Petty v. Cty. of Franklin, Ohio, 478 F.3d 341, 346
(6th Cir. 2007). This distinction is insufficient to warrant
exercise of the Court's discretion. Courts in this
district have held that “merely being time-barred from
refiling an action is not, on its own, necessarily a
compelling reason to extend the time to execute
service.” Bradford v. Bracken Cty., 767
F.Supp.2d 740, 753 (E.D. Ky. 2011); see also DeLong v.
Arms, 251 F.R.D. at 255 (E.D. Ky. 2008) (holding the
same). Therefore, Plaintiff's claims against Defendant
Adbulhaleem are dismissed pursuant to Rule 12(b)(6) and for
failure to comply with Rule 4(m).
for the reasons stated herein, IT IS ORDERED
that Defendant Abdulhaleem's motion to dismiss (Doc. #
12) is granted, and Plaintiffs ...