United States District Court, E.D. Kentucky, Central Division
MEMORANDUM OPINION AND ORDER
M. HOOD SENIOR U.S. DISTRICT JUDGE.
parties clearly wish to litigate in different fora.
Plaintiffs Kenneth Hatton and Lora Hatton (“the
Hattons”) want to litigate the case in state court.
Defendant Nationwide Mutual Insurance Company
(“Nationwide”) would prefer a federal forum.
parties have already fought one round in federal court. In
that case, Nationwide was the Plaintiff and brought a
declaratory judgment action against the Hattons as
Defendants. The Court found that The Roark Agency, LLC,
(“Roark”) was not an indispensable party, but the
Court used its discretion and refused to exercise
jurisdiction in the declaratory judgment action.
Nationwide Mut. Fire Ins. Co. v. Hatton, 357
F.Supp.3d 598 (E.D. Ky. 2019) (hereinafter “Hatton
similar action is back before this Court, with the parties
flipped. Here, the Hattons are the Plaintiffs and Nationwide
is the Defendant. The Court will refer to the present action
as “Hatton II.”
Hatton II, there are pending motions to remand to
state court and to dismiss the second amended complaint.
Still, the discrete issue before the Court at present is
whether Roark was served within the ninety-day time limit in
Federal Rule of Civil Procedure 4(m) and, if not, whether the
claims against Roark should be dismissed. After considering
the parties' arguments, all claims against The Roark
Agency, LLC, in the amended complaint are DISMISSED
WITHOUT PREJUDICE because the Hattons failed to
timely serve Roark, have not demonstrated good cause for the
untimely service, and the relevant factors support dismissal
of this action over permitting untimely service of process.
in Hatton I, Nationwide filed a declaratory judgment
action against the Hattons in federal court. The Hattons
moved to add The Roark Agency, LLC, as a third-party
plaintiff. Roark is a local insurance agency that assisted
the Hattons in procuring the Nationwide policy at issue in
this action. The Hattons argued that Roark was an
Court concluded that Roark was not an indispensable party but
refused to exercise jurisdiction in a declaratory judgment
action brought by Nationwide, the natural defendant, against
the Hattons, the natural plaintiffs, in an action that
implicated issues of state law. See Hatton I, 357
F.Supp.3d at 619-20.
on January 14, 2019, the Hattons filed suit against
Nationwide in Montgomery Circuit Court. [DE 1-1 at 1-2, Pg ID
5-6]. Glaringly, the Hattons did not name Roark as a
defendant in the state court action. As a result, Nationwide
removed the action to this Court based on diversity of
citizenship jurisdiction. [DE 1].
on January 28, 2019, the Hattons filed an amended complaint
naming Roark as a Defendant in the action. [DE 6].
Contemporaneously, the Hattons filed a motion to remand the
action to state court and for attorneys' fees. [DE 9].
Nationwide responded in opposition [DE 11] and filed a motion
to dismiss the Hattons' amended complaint because the
Hattons filed to seek leave of court to amend the complaint
under Federal Rule of Civil Procedure 21 [DE 12]. The motion
to remand and motion to dismiss the complaint are pending for
a decision from the Court.
new issue has arisen. On June 6, 2019, Nationwide and Roark
filed motions to dismiss the claims against Roark based, at
least partially, on the Hattons' failure to effectuate
proper service upon Roark within the ninety-day period
outlined in Rule 4(m). [DE 19; DE 20]. The Hattons responded
in opposition to the motions to dismiss. [DE 21; DE 22].
Nationwide and Roark replied. [DE 23; DE 24]. As a result,
the motions to dismiss based on failure to effectuate service
within the time required by the Federal Rules are ripe for
4(m) of the Federal Rules of Civil Procedure requires that
defendants 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). Thus, if the ninety-day period for
service has expired the Court must undertake a two-step
the Court must determine whether the Plaintiffs have shown
good cause for the failure to effectuate service in a timely
manner. If they have, then the Court has no discretion, and
“the court shall extend the time for service for an
appropriate period.” Id.
if the Plaintiffs have not shown good cause, the Court has
discretion to either (1) dismiss the action without prejudice
or (2) direct that service by effected within a specified
time. Henderson v. United States,517 U.S. 654, 662
(1996); Kinney v. Lexington-Fayette Urban Cty.