Opinion
Civ. No. 99-2103, C/W 99-2428, SECTION "R" (5).
January 20, 2000.
ORDER AND REASONS
Before the Court is defendant Steve Timmerman's motion to dismiss for insufficiency of service of process, and the motions of plaintiff and defendant for costs. Because this Court finds that plaintiff demonstrated good cause for her failure to serve Timmerman, defendant's motion is denied. The Court denies both parties' motion for costs as it finds that costs are not warranted in this case.
On July 9, 1999, plaintiff Mary Lynda Ensenat filed suit in this Court against Oreck Corporation and Steve Timmerman, alleging, inter alia, sexual harassment in violation of Title VII. Plaintiff also filed an identical action in state court, which defendant Oreck Corporation removed to federal court with Timmerman's consent on August 10, 1999. The cases were subsequently consolidated.
Timmerman claims that he was never served with the complaint and now moves to dismiss for insufficiency of service of process under Federal Rules of Civil Procedure 12(b)(5) and 4(m).
Rule 4(m) provides:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time of service for an appropriate period.
FED. R. CIV. PRO. 4(m). When service of process is challenged, the plaintiff carries the burden of proving good cause for her failure to effect timely service. See Gitz v. St. Tammany Parish Hospital, 125 F.R.D. 138 (E.D. La. Mar. 31, 1989); Purvis v. Jenkins, 1998 WL 290212, at *2 (E.D. La. June 2, 1998). Good cause has been defined as "at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice, and some showing of good faith on the party seeking an enlargement and some reasonable basis for non-compliance within the time specified is normally required." Purvis, 1998 WL 290212, at *2, internal quotations omitted, citing Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985); Gitz, 125 F.R.D. at 139. More simply stated, a plaintiff shows good cause for delay when a good faith attempt is made to effectuate service, but the service nonetheless fails to satisfy all the requirements set forth in Rule 4. See Chilean Nitrate Corp. v. M/V Hans Leonhardt, 810 F. Supp. 732, 735 (E.D. La. 1992). Finally, "each case must be taken on its own particular facts to determine whether a good faith effort to effectuate service has been made." Id., quoting Brown v. Bellaplast Maschinenbau, 1986 WL 6145, at *3 (E.D. Pa. May 27, 1986).
Here, plaintiff made good faith attempts to serve the defendant by mail on three separate occasions (on July 14, 1999 and September 24, 1999 in Louisiana, and on November 1, 1999 in California). Each of these was unsuccessful, and the letters were returned unclaimed. Plaintiff then attempted to locate the defendant by using infoUSA.com, a locating tool on the internet. While such actions hardly exhausted the plaintiff's possible avenues for locating and serving the defendant, plaintiff did make a good faith effort to effectuate service. Defendant does not allege bad faith or sinister motive in plaintiff's failure to serve him timely. Further, it appears that Timmerman had notice of the suit, as indicated by his consent to removal to this Court in the Notice of Removal filed by Oreck on August 10, 1999. Accordingly, this Court finds that plaintiff's repeated good faith attempts to serve Timmerman, along with defendant's notice of the suit, are sufficient for a finding of good cause. Cf. Bishop v. Rakestraw, 1996 WL 407983, at *2 (N.D. Miss. May, 20, 1996) (plaintiff's repeated attempts to serve process and defendant's actual notice established good cause). Therefore, defendant's motion to dismiss for insufficiency of service of process is denied. Plaintiff has thirty days from the date of this order to effectuate proper service of process.
Both parties request that they be awarded costs, including attorney fees, incurred in connection with preparing their motions. "The trial court has wide discretion with regard to the costs in a case and may order each party to bear his own costs." Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1049 (5th Cir. 1998), internal quotations omitted, quoting Hall v. State Farm Fire Cas. Co., 937 F.2d 210, 216 (5th Cir. 1991). The Court finds that costs are not appropriate in this case, and each party's request for costs in denied.
New Orleans, Louisiana, this 20th day of January, 2000.