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Belhasen v. Hollon

United States District Court, E.D. Kentucky, Southern Division, London

May 23, 2018

RONALD K. BELHASEN PLAINTIFF
v.
ALVA A. HOLLON, JR. DEFENDANT

          MEMORANDUM OPINION AND ORDER

          David L. Bunning, Judge

         This matter is before the Court on Defendant's Motion to Dismiss, seeking dismissal of Plaintiff's action for failure to timely serve Defendant under Federal Rule of Civil Procedure 4(m). (Doc. # 10). For the reasons below, this action is dismissed.

         I. Factual and Procedural Background

         On October 11, 2017, Plaintiff filed this action alleging that he had been maliciously prosecuted by Defendant. (Doc. # 1). According to Plaintiff, he was a physician and orthopedic surgeon in southern Kentucky when Defendant filed a medical-malpractice complaint against him in 2008. Id. at 1-2. Plaintiff asserts that Defendant “instituted and continued” the case against him “without probable cause, ” even after “it became clear that no probable cause existed, ” until the court granted summary judgment in Plaintiff's favor and dismissed the matter in 2016. Id. at 2. Throughout, Plaintiff alleges that Defendant “engaged in a pattern of delay designed to mask the fact that he could not locate an expert witness” willing to testify that Plaintiff's medical decisions and actions fell below the standard of care. Id. Plaintiff now seeks compensatory and punitive damages. Id. at 8.

         On November 20, 2017, the Kentucky Secretary of State filed a notice indicating that it was not able to process the summons issued to Defendant because Plaintiff had not included the filing fee. (Doc. # 5). Ninety days after he had first filed the Complaint, on January 9, 2018, Plaintiff notified the Court that he had requested a second summons, for the purpose of having it served by the Kentucky Secretary of State. (Doc. # 6). The Kentucky Secretary of State filed a notice that same day indicating that it had reissued a service packet for summons to Plaintiff. (Doc. # 7).

         On March 22, 2018, more than seventy days later-with still no indication that Plaintiff had served Defendant-this Court issued an Order requiring Plaintiff to show cause within ten days as to why he had not yet served Defendant, or face dismissal under Federal Rule of Civil Procedure 4(m). (Doc. # 8). On March 30, 2018, 170 after the case was initially filed, Plaintiff responded to the Court's Show Cause Order. (Doc. # 9). Plaintiff explained that the reason the service of summons had taken so long was that he was “under the mistaken impression that all fees had been paid electronically.” Id. Plaintiff also indicated to the Court that the summons, issued on January 9, 2018, had been “hand-delivered to the Secretary of State … together with appropriate payment” that same day. Id.

         Shortly thereafter, Defendant filed a Motion to Dismiss, or in the alternative, Motion for Summary Judgment. (Doc. # 10). Defendant argues that the case should be dismissed for insufficient service of process under Rule 12(b)(5), lack of personal jurisdiction under Rule 12(b)(2), and for failure to state a claim under Rule 12(b)(6). Id. In the alternative, Defendant argues that summary judgment in Defendant's favor under Rule 56 is appropriate. Id. Plaintiff having responded (Doc. # 12), and Defendant having replied (Doc. # 13), this motion is ripe for the Court's review.

         II. Analysis

         The Federal Rules of Civil Procedure require a defendant be served “within ninety (90) after the complaint is filed.” Fed.R.Civ.P. 4(m). If not:

[T]he 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.

Id.

         Following a determination that a defendant has not been timely served, the Rule contains two commands. First, the Court must either order service be made within a certain time or dismiss the action. Second, upon a plaintiff's showing of good cause for his failure, the Court is required to extend the time for service. Logically, an inquiry into the second order must be made first; it makes no sense to extend the time for service upon a showing of good cause if the court has already chosen to dismiss the action, or to determine whether good cause is shown if the court has already used its discretion to extend the time for service. See, e.g., Bradford v. Bracken Cty., 767 F.Supp.2d 740, 753 (E.D. Ky. 2011).

         Plaintiff argues that he has shown good cause for his failure to timely serve Defendant because his counsel inadvertently failed to properly pay the Kentucky Secretary of State for service, as it was counsel's “impression that all fees had been paid electronically.” (Doc. # 9). However, Plaintiff all-but concedes that he has not shown good cause, arguing that if good cause does not exist, the Court still has discretion to dismiss the case or extend the time for service. (Doc. # 12 at 8). In support of his argument to extend service, Plaintiff argues that “other substantial factors” “weigh in favor of not dismissing the case.” Id. Plaintiff provides two “other substantial factors.” Id. at 9. First, Plaintiff argues that the total delay in service is miniscule compared to the delays in the prior state-court medical-malpractice action between Plaintiff and Defendant's former client. Id. Second, Plaintiff argues that Defendant has not suffered any prejudice from the delay of service, and in fact Defendant received service only “a mere four days after filing” his Motion to Dismiss. Id.

         Although Rule 4(m) does not define good cause, the Sixth Circuit has required “at least excusable neglect.” Stewart v. Tenn. Valley Auth., 238 F.3d 424, at *1 (6th Cir. 2000) (table). This standard “has consistently been held to be strict, and can be met only in extraordinary circumstances.” Turner v. City of Taylor, 412 F.3d 629, 650 (6th Cir. 2005) (quoting Marsh v. Richardson, 873 F.2d 129, 130 (6th Cir. 1989)). To assess a claim of excusable neglect, the Court considers the neglect of both the party and the party's counsel. McCurry ex rel. Turner v. Adventist Health Sys./Sunbelt, Inc., 298 F.3d 586, 595 (6th Cir. 2002) (citing Pioneer Inv. Servs. Co. v. Brunswick Assoc. ...


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