Opinion
Case No. 01-2380-JWL.
January 29, 2002
MEMORANDUM ORDER
On January 3, 2002, this court issued a show cause order to the plaintiff requiring that he show good cause in writing on or before January 16, 2002, why this action should not be dismissed for failure to make effective service of process upon defendants Paul Morrison, Frank Deihl, Crista Collins, Johnson County and the Olathe Police Department within 120 days of filing the second amended complaint as required by Federal Rule of Civil Procedure 4(m). The plaintiff responded on January 7, 2002, by stating that he "sent copies of the amended claim to the defendants listed in the U.S. Mail [sic] on or about January 2nd [sic] of 2002." The plaintiff attached a post office receipt showing the purchase of postage on January 2, 2002, for seven first-class, certified letters.
In Espinoza v. United States, 52 F.3d 838 (10th Cir. 1995), the Tenth Circuit set out the inquiry a district court should make before dismissing a claim pursuant to Rule 4(m):
The preliminary inquiry to be made under Rule 4(m) is whether the plaintiff has shown good cause for the failure to timely effect service. In this regard, district courts should continue to follow the cases in this circuit that have guided that inquiry. If good cause is shown, the plaintiff is entitled to a mandatory extension of time. If the plaintiff fails to show good cause, the district court must still consider whether a permissive extension of time may be warranted. At that point the district court may in its discretion either dismiss the case without prejudice or extend the time for service.Espinoza, 52 F.3d at 841. In this case, the court concludes that the plaintiff has failed to show good cause. Federal Rule of Civil Procedure 4 sets out the requirements for effective service of process. Rule 4(e)(1) allows service pursuant to the law of the state in which the district court is located. Kansas allows service of a summons by return receipt delivery, including by "certified mail . . . in each instance evidenced by a written or electronic receipt showing to whom delivered, date of delivery, address where delivered, and person or entity effecting delivery." K.S.A. § 60-303. The receipt indicating the purchase of postage for seven first-class, certified letters is not sufficient evidence of effective service under the Kansas statute. Most importantly, and causing the court to end its inquiry into whether the plaintiff followed the method approved by the Kansas statute, the receipt is dated January 2, 2000, more than 120 days after the amended complaint was filed. Although Rule 4(m) does not define good cause, the Tenth Circuit "has interpreted the phrase narrowly, rejecting inadvertence or neglect as 'good cause' for untimely service." In Re Kirkland, 86 F.3d 172, 174 (10th Cir. 1996). The plaintiff has not attempted to explain why he did not serve the defendants before 120 days expired. Lacking an explanation from the plaintiff, the court must conclude that the plaintiff has not shown good cause.
The court also believes that a permissive extension of time is not warranted. The plaintiff has not attempted to explain why service was not effected within 120 days and has not asked for an extension of time to serve the defendants. Crewse v. MCI Telecom Corp., 2000 WL 360190, *2 (D.Kan. March 16, 2000). The exemplary circumstances warranting a permissive extension of time listed in the notes to Rule 4(m) are absent in this case. See Fed.R.Civ.P. 4(m) advisory committee notes, 1993 amendments ("Relief may be justified [absent a showing of good cause], for example, if the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or conceals a defect in attempted service."). The statute of limitations does not appear to have run on the plaintiff's claims and there is no evidence of misconduct by the defendants. Because the court is aware of no other factor in this case warranting a permissive extension, one will not be granted.
The show cause order also required the plaintiff to show cause on or before January 16, 2002, why the court should not strike the plaintiff's second amended complaint (Doc. 25) for failure of the plaintiff to seek leave of court or written consent of the defendants to amend the complaint. The plaintiff has not attempted to show cause and has not sought leave of court to file an amended complaint or written consent of the defendants as required by Federal Rule of Civil Procedure 15(a) and the court, therefore, strikes the second amended complaint (Doc. 25).
When issuing the show cause order the court, by oversight, neglected to include the Johnson County District Attorney's Office in the list of defendants not served within 120 days of the plaintiff filing the first amended complaint. Nonetheless, the court dismisses the claim against the office because the district attorney, Paul Morrison, not his office, is the party against which the plaintiff would have a claim. McCormick v. Board of County Commissioners of Shawnee County, 24 P.3d 739, 746 (Kan. 2001) ("In Kansas, district attorneys are officers of the State."). Mr. Morrison was included in the court's show cause order and, for the reasons explained above, is dismissed from the case for the failure of the plaintiff to properly serve him within 120 days.
IT IS THEREFORE ORDERED that defendants Paul Morrison, Frank Deihl, Crista Collins, Johnson County, the Olathe Police Department and the Johnson County District Attorney's Office are dismissed from this case without prejudice.
IT IS FURTHER ORDERED that the plaintiff's second amended complaint (Doc. 25) is striken.