Opinion
Case No: 03-61797-CIV-UNGARO-BENAGES
February 2, 2004
ORDER GRANTING IN PART PLAINTIFF LINCOLN BENEFIT'S MOTION TO ENLARGE TIME TO SERVE DEFENDANTS
THIS CAUSE is before the Court upon Plaintiff Lincoln Benefit's Motion to Enlarge Time to Serve Defendants, filed January 29, 2004.
THE COURT has considered the motion, the pertinent portions of the record, and is otherwise fully advised in the premises. On September 30, 2003, Plaintiffs filed the complaint in this case. Pursuant to Fed.R.Civ.P. 4(m), Plaintiffs were required to effectuate service upon all Defendants by January 28, 2004, To date, service has not been effectuated upon Defendants Antonio Mitchell, Sonny Mitchell a/k/a Sonny Miller, Vincent Mitchell and Steve Davis (collectively "Defendants"), who claim to be beneficiaries to a disputed life insurance policy issued by Plaintiff Lincoln Benefit Life Insurance Company. Plaintiff Lincoln Benefit now seeks an additional ninety days in which to effectuate service upon these Defendants.
In Momah v. Albert Einstein Medical Center, 158 F.R.D. 66, 69 (E.D. Pa. 1994), the court identified several factors to be considered when deciding whether a party has shown good for an enlargement of the deadline established by Rule 4(m). These factors include whether the delay in service has resulted from professional incompetence, whether the excuses offered for the delay are of the type easily manufactured and not verifiable by the Court, whether plaintiffs counsel has failed to provide for a readily foreseeable consequence, whether the lack of service results from a complete lack of diligence, or whether counsel has made good faith efforts toward compliance. Id at 69 (citing Dominic v. Hess Oil V.I. Corp., 841 F.2d 513, 517 (3d Cir. 1988); Consolidated Freightways Corp. v. Larson, 827 F.2d 916, 919 (3d Cir. 1987)).
Plaintiffs motion advises the Court that Plaintiff attempted in October 2003 to effectuate service upon these Defendants through John C. Dent, Jr., the attorney who initially contacted Lincoln Benefit on behalf of Defendants in an attempt to collect on the disputed insurance policy. Further, summons were issued for these Defendants on December 3, 2003, listing Defendants' mailing addresses as those contained in the correspondence from Dent attempting to collect on the insurance policy. Plaintiff Lincoln Benefit has submitted affidavits of attempted service demonstrating that they have been unable to locate Defendants at these addresses. Plaintiffs Motion, at Exhibit E. On January 6, 2004, Plaintiff attempted to communicate with Defendants through correspondence addressed to Dent, and has not since received a response from either Dent or Defendants.
Plaintiff has demonstrated a good faith efforts to serve Defendants, and the Court is satisfied that the inability to effectuate service is not the result of professional incompetence or a lack of reasonable diligence by Plaintiff. Plaintiffs motion, however, does not advise the Court of the additional steps that will be taken to locate and serve Defendants, and does not explain the basis for the specific amount of additional time requested. Without a meaningful way to determine whether ninety days is a reasonable enlargement of the deadline by which to serve Defendants, the undersigned is unwilling to delay resolution of this cause by an additional three months. Accordingly, it is hereby
ORDERED and ADJUDGED that Plaintiff Lincoln Benefit's Motion to Enlarge Time to Serve Defendants is GRANTED IN PART, and Plaintiffs shall effectuate service upon Defendants Antonio Mitchell, Sonny Mitchell a/k/a Sonny Miller, Vincent Mitchell and Steve Davis pursuant to Fed.R.Civ.P. 4(m) by March 1, 2004. Failure to complete service by this date will result in dismissal of this action without prejudice as to these Defendants.
DONE AND ORDERED.