Summary
refusing to dismiss under Rule 4(m) in part because plaintiff would be time-barred from relitigating
Summary of this case from Zermeno v. McDonnell Douglas Corp.Opinion
Civil Action No. 01-0935, Section "K"(3)
November 28, 2001
Before the Court is a Motion to Dismiss (Doc. No. 3) filed by Brown Williamson Tobacco Corporation ("Brown Williamson) pursuant to Fed.R.Civ.P. 12(b)(5). The motion is based upon the alleged failure of plaintiff to serve defendants, Brown Williamson, Rick Skidmore and Nick Tisone within 120 days pursuant to Fed.R.Civ.P. 4(m). Troy Esteen ("Esteen") served Brown Williamson 124 days after the filing of the complaint. To date, the individual defendants have not been served.
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 of the failure, the court shall extend the time for service for an appropriate period.
Fed R. Civ. P. 4(m). The Supreme Court in Henderson v. United States, 116 S.Ct. 1638 (1996), noted that in the "1993 amendments to the Rules, courts have been accorded discretion to enlarge the 120-day period "even if there is no good cause shown.' See Advisory Committee's Notes on Fed. Rule Civ. Proc. 4, 28 U.S.C. App. p. 654." Id. at 662-63. Thus, the Court concluded the Federal Rules convey "a clear message: Complaints are not to be dismissed if served within 120 days, or within such additional time as the court may allow." Henderson, 116 S.Ct. at 1644.
Here, Brown Williamson knew about the suit and in fact were served only four days after the time limit of Rule 4(m). Brown Williamson knew about the case as a result of the complaint filed with the Equal Employment Opportunity Commission on January 10, 2001. The company would not be prejudiced, and dismissal without prejudice of plaintiffs complaint would result in a time bar. As such, the Court will deny the motion to dismiss Brown Williamson. Austin v. Talley, 2000 WL 385503 (E.D.La. April 17, 2000) citing Hickman v. U.G. Lively, 897 F. Supp. 955, 960 (S.D. Tex. 1995).
With respect to the individual defendants, plaintiff avers that he does not have a known address as to either and did attempt to obtain the proper addresses through the use of the internet and Brown Williamson. Now that formal discovery is available to plaintiff, the Court will expand the time for service on the individual defendants to January 15, 2002. Accordingly,
IT IS ORDERED that the Motion to Dismiss is DENIED with respect to Brown Williamson and plaintiff is given up to and including January 15, 2002. Failure to serve within that time period shall result in the dismissal of the individual defendants.