Opinion
NOT FOR PUBLICATION
ORDER ON MOTION TO DISMISS
PETER W. BOWIE, chief Judge. United States Bankruptcy Court.
This matter came on regularly for hearing on defendant Carpenter's motion to dismiss. The motion is predicated on the failure of plaintiff to make proper service of the summons and complaint on the defendant pursuant to Rule 7004 and on the collateral ground that the summons issued by the Clerk's Office had expired without proper service having been effected. Plaintiff acknowledges that defendant has not been personally served, but asserts it is because the address listed on debtor's petition does not exist.
At the hearing on the motion to dismiss, the Court heard argument from defendant's current counsel, as well as from plaintiff Mitchell, appearing in his own behalf. At the conclusion of the hearing, the Court orally ruled, on the record that the motion to dismiss was granted, without prejudice to refiling and proper service.
Following the hearing, and oral ruling, the Court has revisited the matter, sua sponte, and now reverses its oral ruling. The motion to dismiss is hereby denied, without prejudice to renewal when it is ripe.
As noted, it is correct that defendant Carpenter has not been personally served with the summons and complaint in this adversary proceeding. It is also correct that the summons issued by the Clerk's Office on September 27, 2010 has long since expired. However, that does not mean time has run on plaintiff; opportunity to effect service on defendant Carpenter. To the contrary, Rule 4(m), Federal Rule of Civil Procedure, made applicable in these proceedings by Rule 7004(a) Federal Rule of Bankruptcy Procedure, provides for a period of up to 120 days from filing the complaint to make service, and even longer for "good cause." The adversary complaint was filed September 27, 2010, and the hearing on the motion to dismiss was held on November 29, 2010, barely 60 days into the time available to effect service.
The Court has no occasion at this time to consider whether "good cause" under Rule 4(m) exists in this case to extend the service period even further because of debtor's use of an incomplete or inaccurate personal address. On November 22, 2010 plaintiff requested and was issued an Alias Summons. Plaintiff apparently still has time to effect service of process of the Alias Summons and Complaint.
Accordingly, defendant's Motion to Dismiss should have been and hereby is denied, without prejudice. Plaintiff need not refile the underlying complaint before making proper service on defendant.
IT IS SO ORDERED.