Opinion
Civil Action 2:05-cv-00901.
November 17, 2010
ORDER
This matter is before the Court for consideration of Plaintiff's Motion for Relief from Judgment Pursuant to 60(b)(4) and Motion for a Modest Extension of Time (Doc. # 48). For the reasons that follow, Plaintiff's Motion is DENIED and Plaintiff's claim against Defendant Chuck (L.N.U.) is DISMISSED without prejudice.
I. BACKGROUND
Plaintiff filed his original Complaint in this case on September 29, 2005. On May 17, 2006, Plaintiff filed his Amended Complaint. In his Amended Complaints, as well as his original, Plaintiff brings a state law claim against Defendant Chuck (L.N.U.) (hereinafter "Chuck"). The record reflects, and both parties agree, that Plaintiff failed to effectively serve his Complaints on Defendant Chuck within 120 days of their filing. See Fed.R.Civ.P. 4(m). After the filing of the Amended Complaint, Defendant Salvation Army moved for summary judgment. This Court granted summary judgment on June 4, 2007, directing the clerk to "enter a final judgment in this case in favor of Defendants." (Doc. # 26 at 11.) Consequently, the Clerk entered judgment against all Defendants, including Defendant Chuck. (Doc. # 27.)
In his Amended Complaint, Plaintiff brought both a federal and state law claim against Defendant Salvation Army, a New York Corporation ("Salvation Army"). Defendant Salvation Army identified Defendant Chuck in discovery as Charles Snider.
In response to a Court Order, the parties filed a Joint Status Report detailing the state of proceedings against Defendant Chuck.
Plaintiff appealed the Court's grant of summary judgment. On June 2, 2008, the United States Court of Appeals for the Sixth Circuit reversed this Court's decision. Nevertheless, the Court also held, without distinguishing between Defendants Salvation Army and Chuck, "[Plaintiff] has now abandoned his state law discrimination claim." Doe v. Salvation Army in the United States, 531 F.3d 355, 357 (6th Cir. 2008).
In response to the Court's inquiry regarding the status of Defendant Chuck, Plaintiff brought his current Motion on October 25, 2010. Plaintiff seeks relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(4). Plaintiff maintains that the Court's June 4, 2007 entry of judgment against Defendant Chuck is void. Specifically, Plaintiff asserts that the Court lacked personal jurisdiction over Defendant Chuck because Plaintiff never served him. (Doc. # 48 at 3-7.) Additionally, in response to the Court's October 18, 2010 Order to show cause pursuant to Federal Rule of Civil Procedure 4(m), Plaintiff requests a modest extension of time to effect service. Plaintiff concedes that he lacks good cause for failing to serve Defendant Chuck, but contends that the Court may still grant him an extension to serve Defendant Chuck under Rule 4(m). ( Id. at 8-9.) Defendant Salvation Army maintains that Plaintiff's actions demonstrate a lack of intention to pursue the state law claim against Defendant Chuck and that Plaintiff failed to request relief from judgment within a reasonable time. (Doc. # 50 1 — 4.)
The parties dispute other relevant issues in their filings including whether a plaintiff may use the Court's lack of personal jurisdiction over a defendant to seek relief under Rule 60(b)(4) and whether the Court should allow Plaintiff to amend his Amended Complaint. ( See generally Doc. # 50, 51.) Nevertheless, because the Court concludes that it should dismiss Plaintiff's claim against Defendant Chuck for other reasons, described below, it does not find it necessary to resolve these issues.
II. LAW AND ANALYSIS
A. Relief from Judgment Pursuant to Rule 60(b)(4)
Pursuant to the Federal Rules of Civil Procedure the Court may relieve a party from a judgment that is void. Fed.R.Civ.P. 60(b)(4). As this Court has noted, "[u]nder Rule 60(b)(4), a judgment is rendered void only 'if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of the law.'" Webb v. Oney, No. 1:07-cv-981, 2010 WL 1726827, at *2 (S.D. Ohio April 27, 2010) (quoting Antoine v. Atlas Turner, Inc., 66 F.3d 105, 108 (6th Cir. 1995)). "'[T]he party seeking relief under Rule 60(b) bears the burden of establishing the grounds for such relief by clear and convincing evidence.'" Satyam Computer Servs., Ltd. v. Venture Global Eng'g, LLC, 323 Fed. Appx. 421, 427 (6th Cir. 2009) (quoting Info-Hold, Inc. v. Sound Merch., Inc., 538 F.3d 448, 454 (6th Cir. 2008)).Nevertheless, "[a] motion under Rule 60(b) must be made within a reasonable time. . . ." Fed.R.Civ.P. 60(c)(1). Although other courts have implied differently, the United States Court of Appeals for the Sixth Circuit has made clear that the reasonable time requirement applies to Rule 60(b)(4) motions. Days Inns Worldwide, Inc. v. Patel, 445 F.3d 899, 906-08 (6th Cir. 2006) (holding that a district court did not abuse its discretion in finding appellant's Rule 60(b)(4) motion, which he filed approximately eleven months after default judgment, untimely); Blachy v. Butcher, 129 Fed. Appx. 173, 179 (6th Cir. 2005) (holding Rule 60(b)(4) and (6) claims untimely when the party attempted to file the motions more than three years after judgment); see also United States v. Leprich, 169 Fed.Appx. 926, 932 (6th Cir. 2006) ("Motions pursuant to 60(b)(4) shall be made within a reasonable time. . . .") (internal quotations omitted); but see, e.g., "R" Best Produce, Inc. v. DiSapio, 540 F.3d 115, 123-24 (2nd Cir. 2008) (implying that a party can bring a Rule 60(b)(4) motion at nearly any time).
"What constitutes a reasonable time depends on the facts of each case." Days Inns Worldwide, 445 F.3d at 906 (citing In re Abdur'Rahman, 392 F.3d 174, 185 (6th Cir. 2004), vac'd on other grounds, 545 U.S. 1151 (2005)). In assessing reasonableness the Court will examine "the length and circumstances of the delay in filing, prejudice to the opposing party, and any circumstances warranting equitable relief." Leprich, 169 Fed. Appx. at 932. Furthermore, "[i]t is well settled that a Rule 60(b) motion 'cannot be used to avoid the consequences of a party's decision . . . to forego an appeal from an adverse ruling.'" Id. (quoting Pierce v. United Mine Workers of Am. Welfare Ret. Fund, 770 F.2d 449, 451-52 (6th Cir. 1985)); see also In re G.A.D., Inc., 340 F.3d 331, 337 (6th Cir. 2003) ("A party may not use a Rule 60(b)(4) motion as a substitute for a timely appeal.").
Here, the Court finds that Plaintiff did not file his 60(b)(4) Motion within a reasonable time. Plaintiff filed the current Motion on October 25, 2010, well over three years after this Court's entry of judgment on June 4, 2007. Nevertheless, Plaintiff maintains that equitable factors indicate that his Motion is timely. ( See Doc. # 48 at 7.) In particular, Plaintiff contends that equitable relief is warranted because the case remains open; Plaintiff could not have expected the Court to render summary judgment with regard to Defendant Chuck; and Defendant Chuck would not be prejudiced if Plaintiff is allowed to pursue the state law claim because the applicable statute of limitations has not yet run. ( Id.)
Furthermore, Plaintiff's current actions did not come about until the undersigned found it necessary to inquire regarding the status of Defendant Chuck. ( See Doc. # 45.)
Plaintiff, however, overlooks various factors important to the Court's decision. Most importantly, Plaintiff provides no good reason justifying his filing of the Rule 60(b)(4) Motion over three years after the Court's entry of judgment. See Days Inns Worldwide, 445 F.3d at 906 ("Appellant does not attempt to identify any good reason for not filing his 60(b)(4) motion until more than eleven months after he was properly served with the complaint and the default-judgment motion.") Plaintiff was certainly aware of the Court's 2007 order and entry of judgment, as evidenced by the fact that he chose to appeal from the Court's decision. It was during this appeal that Plaintiff failed to raise any arguments regarding his state law claim or Defendant Chuck, leading the Sixth Circuit to conclude that he abandoned his state law claim. Doe v. Salvation Army, 531 F.3d at 357. Finally, the fact that Plaintiff's statute of limitations has not run cuts in both directions. Although it does indicate that Defendant Chuck would not be prejudiced if the Court granted Plaintiff's relief, it also means that Plaintiff may still file his action in state court, which undermines his contention that equitable relief is warranted. Ultimately, due to Plaintiff's longstanding neglect regarding his claim against Defendant Chuck, the Court concludes that Plaintiff's Rule 60(b)(4) Motion is untimely.
B. Service Pursuant to 4(m)
Even assuming that Plaintiff is entitled to relief from judgment pursuant to Rule 60(b)(4), Plaintiff still requires an extension of time to serve Defendant Chuck pursuant to Federal Rule of Civil Procedure 4(m). Plaintiff admits that he did not serve either his Complaint or Amended Complaint within 120 days. (Doc. # 48 at 8.) Additionally, Plaintiff concedes that he lacks good cause for failing to serve Defendant Chuck. ( Id.) Nevertheless, Plaintiff contends that the Court may still extend the time for service pursuant to Rule 4(m).
As part of its October 18, 2010 Order, the Court required Plaintiff to show cause for failure to effect service pursuant to Federal Rule of Civil Procedure 4(m).
Plaintiff is certainly correct that, if a plaintiff lacks good cause, it is within the Court's discretion to decide whether to dismiss that plaintiff's suit or extend time to serve. Wise v. Dep't of Defense, 196 F.R.D. 52, 56 (S.D. Ohio 1999) ("[T]his Court concludes that it may, in its discretion, extend the 120-day period for Wise to effect service on the Defendants, pursuant to the first clause of Rule 4(m), even absent a showing of good cause."). Specifically, Rule 4(m) provides that, in the absence of good cause for failure to perfect service, the Court "must dismiss the action without prejudice against that defendant or order that service be made within a specified time." Fed.R.Civ.P. 4(m) (emphasis added).
The Advisory Committee Notes to Rule 4 provide some examples of when the Court might choose, in its discretion, to extend the period for service. See Fed.R.Civ.P. 4, Advisory Committee Notes (1993 Amendments). The Notes provide that "[r]elief [from dismissal] may be justified, 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." Id. Moreover, this Court has outlined factors it considers in exercising its discretion under Rule 4(m), which include:
(1) whether a significant extension of time was required; (2) whether an extension of time would prejudice the defendant other than the inherent 'prejudice' in having to defend the suit; (3) whether the defendant had actual notice of the lawsuit; (4) whether a dismissal without prejudice would substantially prejudice the plaintiff . . . and (5) whether the plaintiff had made any good faith efforts at effecting proper service of process.Stafford v. Franklin Cnty, Ohio, No. 2:04-CV-178, 2005 WL 1523369, *3 (S.D. Ohio June 28, 2005) (quoting Nehls v. Hillsdale Coll., No. 1:03-CV-140, 2004 LEXIS 8588, at *15 (W.D. Mich. Feb. 20, 2004)); see also Becker v. Warden Ross Correctional Instiutution, No. 2:05-CV-908, 2006 WL 2869567, at *4 (S.D. Ohio Oct. 5, 2006) (applying the same factors).
Rule 4 and the Advisory Notes favor dismissal in this case. First, the instant circumstances are not analogous to any of the examples provided in the Advisory Committee regarding when the Court may extend time to effect service. By Plaintiff's own admission, the statute of limitations has not run on his state law claim, and, therefore, he would be able to refile his claim against Defendant Chuck in state court. ( See Doc. # 48.) The record provides no indication that Defendant Chuck has evaded service in any way. To the contrary, he attended a deposition in this case.
Although mixed, the factors outlined in Stafford also weigh in favor of dismissal. Plaintiff correctly points out that the second and third factors noted in Stafford support an extension. ( See Doc. # 48 at 9.) Defendant Chuck clearly has notice of this action because he was deposed in this matter. As to the third factor, there is no strong indication that Defendant Chuck would suffer prejudice if an extension is granted. Nevertheless, the first, fourth, and fifth factors outlined in Stafford weigh strongly in favor of dismissal. Although Plaintiff only requests a "modest" extension of time, because Plaintiff's Amended Complaint was filed in May of 2006, the effect of any extension at this point would be to allow Plaintiff to serve the Amended Complaint over four years after the original 120 day deadline passed. Additionally, Plaintiff has not demonstrated any strong prejudice brought about by dismissal because the statute of limitations has not run. He still may file his claim in state court. Sprader v. Goodson, No. C-2-00-946, 2001 WL 506528, at *6 (S.D. Ohio April 17, 2001) (justifying dismissal under Rule 4(m) in part because "[d]ismissal will not prevent plaintiff from being heard on his claim. . . ."). Finally, and perhaps most importantly, there is no evidence that Plaintiff made any good faith efforts to serve Defendant before, or even shortly after, the running of the 120 days.
Plaintiff is no doubt correct that the general policy of this Circuit favors resolving cases on their merits rather than on procedural grounds. ( See Doc. # 48 at 8.) Nevertheless, because Plaintiff will still be able to test the merits of his claim at the state level, the Court finds that this factor does not outweigh other considerations in this case.
III. CONCLUSION
For the foregoing reasons, Plaintiff's Motion for Relief from Judgment Pursuant to 60(b)(4) and Motion for a Modest Extension of Time (Doc. # 48) is DENIED. The Court DISMISSES Plaintiff's claim against Defendant Chuck (L.N.U.) without prejudice. The Clerk is DIRECTED to enter judgment as to Defendant Chuck (L.N.U.).
IT IS SO ORDERED.
November 17, 2010