Opinion
C. A. 4:23-5225-JDA-KDW
07-23-2024
Terry F. Brady, Plaintiff, v. Progressive Northern Ins., Defendant.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Plaintiff Terry F. Brady brought suit against Progressive Northern Ins. on or about October 19, 2023. Under Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), pretrial proceedings in this action were referred to the assigned United States Magistrate Judge. On December 13, 2023, the court directed the Clerk of Court to forward the issued summons to Plaintiff for Service of Process. ECF No. 34 at 1. The court specifically advised Plaintiff that he was responsible for service of process under Rule 4 of the Federal Rules of Civil Procedure. Plaintiff's attention was directed to Federal Rule of Civil Procedure 4(m) which provides that if a defendant is not served with the pleadings within 90 days after service, the defendant may be dismissed without prejudice. ECF No. 34 at 1-2. The deadline for serving Defendant was on or about March 12, 2024. Plaintiff has failed to provide the court with an affidavit or other document providing that service has either been made upon or waived by Defendant. See Fed.R.Civ.P. 4(1).
On April 30, 2024, a month and a half after the deadline to serve Defendant in this case passed, the court ordered Plaintiff to provide proof of service as to Defendant or otherwise respond to the order showing good cause as to the failure to serve Defendant by the deadline. ECF No. 39. Plaintiff was specifically warned that if Plaintiff failed to respond to the order or otherwise satisfy Rule 4 of the Federal Rules of Civil Procedure, the case may be recommended for dismissal pursuant to Federal Rule of Civil Procedure 4(m).
Federal Rule of Civil Procedure 4(c)(1) provides that a plaintiff is responsible for serving a summons, together with a copy of the complaint, within the time requirements set forth under Rule 4(m). Rule 4(m) states that a plaintiff has a 90-day period after the filing of the complaint to effect service. A court must extend the time for service where a plaintiff who has failed to effect service within the time prescribed in Rule 4(m) shows good cause for such failure. See Fed.R.Civ.P. 4(m). Rule 4(m) also provides that if service is not effected within 90 days after the filing of the complaint,
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.
The Court of Appeals for the Fourth Circuit has held that under Rule 4(m), “a district court possesses discretion to grant the plaintiff an extension of time to serve a defendant with the complaint and summons even absent a showing of good cause by the plaintiff for failing to serve a defendant during the 90-day period provided by the Rule.” Gelin v. Shuman, 35 F.4th 212, 220 (4th 2022). In Gelin, the lower court rejected the explanation provided by plaintiff as to why they had failed to serve the defendants in the time required under the rule, and the Fourth Circuit affirmed the district court's holding that the plaintiffs did not demonstrate good cause for their failure to serve the defendants. Id. at 219. However, the Fourth Circuit also agreed with plaintiffs that district courts have discretion to grant an extension even without a showing of good cause, and remanded the case to allow the court to consider the parties' arguments as to whether the court should exercise its discretion to extend the time for service based on the circumstances of that case. Id. at 218; 220.
The undersigned, having considered whether the circumstances in this case warrant the exercise of discretion to extend the time to effect service of process absent a showing of good cause, find the circumstances weigh against exercising such discretion. Plaintiff filed this Complaint against Defendant Progressive Northern Insurance for violations of his due process rights, breach of contract, and bad faith related to an automobile accident on October 19, 2023. ECF No. 1. Plaintiff alleges he has been an insured person with Defendant in excess of ten years and had contacted Defendant regarding insurance coverage related to an automobile accident. ECF No. 1. Plaintiff is currently incarcerated on unrelated charges. ECF No. 1 at 2. Nevertheless, according to Plaintiff's allegations, he was able to contact Defendant prior to the filing of the lawsuit. An order authorizing service of process was issued on December 13, 2023. ECF No. 34. After issuance of the summons for this single Defendant on December 13, 2023, Plaintiff has not filed anything with the court. The deadline to effect service expired approximately three months ago; however, Plaintiff failed to effectuate service. The court then issued an order on April 30, 2024, over a month after the deadline for service expired, directing Plaintiff to provide proof of service or make a showing of good cause as to the failure to serve Defendant. ECF No. 39. Plaintiff did not respond to this order or otherwise make a showing that good cause exists to excuse the failure to serve Defendant. The court has not received any of its mailings returned as undeliverable, nor has Plaintiff contacted the court with a notice of change of address.Indeed, Plaintiff has not filed anything with the court in approximately 6 months despite having had ample opportunity to do so. Thus, based on the circumstances outlined above, the undersigned does not find that the circumstances warrant exercising discretion to extend the deadline for service in this case. Therefore, the undersigned recommends dismissal of this action without prejudice pursuant to Rule 4(m).
Upon the court's own independent search of the South Carolina Department of Corrections website, it appears Plaintiff was incarcerated at Manning Correctional Facility from July 19, 2023 until April 11, 2024. It now appears he is in Livesay Correctional Institution. See Incarcerated Inmate Search, South Carolina Department of Corrections, available at https://public.doc.state.sc.us/scdc-public/inmateDetails.do?id=%2000390279. Still, the time for effectuating service had expired approximately a month prior to this move. Plaintiff was further ordered to keep the Clerk of Court advised in writing if his address changes for any reason. ECF No. 34 at 3.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”