Opinion
Civil Action 00-3401 SECTION "T"(4)
August 5, 2002
Robert P. Kemp, Paul M. Brannon, Raymond Canzoneri, Jr., Kemp Brannon, Metairie, LA, for plaintiffs, Louis J. Klein and Cynthia M Logrande.
Kelly Cambre Bogart, Duplass, Zwain, Bourgeois Morton, Metairie, LA, Margaret E. Bradley, Law Offices of Robert E. Birtel, Metairie, LA, Ralph S. Whalen, Jr., Ralph S. Whalen, Jr., Attorney at Law, New Orleans, LA, for defendants, JEFFERSON PARISH SCHOOL BOARD, SHARON J Bankston, John — MCGEE, JANE MCGEE, JOHN CHARLES, and JANE CHARLES.
Before the Court is a Motion to Dismiss pursuant to Rule 4(m) of the Federal Rules of Civil Procedure (Document No. 7), filed on behalf of the defendants, Jefferson Parish School Board ("JPSB") and Sharon J. Bankston. The Court took this matter under submission on July 3, 2002. The Court, having considered the arguments of counsel, the evidence submitted, the record, the law, applicable jurisprudence, and noting that the plaintiffs failed to file an opposition to the current motion, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND
The complaint in this matter was filed on November 15, 2000 as a sealed document. Service was not perfected on JPSB and Sharon Bankston until March 26, 2002. This delay is well over the hundred and twenty day time limit for perfection of service that is established by Federal Rule of Civil Procedure 4(m).
II. LAW AND ANALYSIS
A. The Law on FRCP 4(m).
Federal Rule fCivil Procedure 4(m) provides as follows regarding the time limit for service:
If service of the summons and complaint is not made upon a defendant within a hundred and twenty 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 effectuated within a specific time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period
The Fifth Circuit has held that the federal rules require dismissal of a defendant who has not been served within one hundred and twenty days after the complaint is filed unless "good cause" is shown. McDonald v. United States, 898 F.2d 466, 467 (5th Cir. 1990). Other jurisdictions have recognized that when a plaintiff fails to file a timely service of process and fails to show good cause for belated service, the complaint must be dismissed; a district court has no discretion to salvage that action. See Braithwaite v. The Johns Hopkins Hospital, 160 F.R.D. 75 (D.Md. 1995); Serlin v. Arthur Anderson nd Co., 145 F.R.D. 494 (N.D. Ill.), affirmed 12 F.3d 1101 (7th Cir. 1993); Barco Arroyo v. Federal Emergency Management Agency, 113 F.R.D. 46 (D.P.R. 1986).
The Fifth Circuit has equated good cause with "excusable neglect" noting 'that "inadvertence or mistake of counsel or ignorance of the rules usually does not suffice,' and that 'some showing of good faith . . . and [a] reasonable basis for noncompliance within the time specified' is necessary to show good cause." McDonald, 898 F.2d at 467 (citing Winters v. Teledyne, 776 F.2d 1304 (5th Cir. 1985)).
In the instant matter, the complaint was not served on the defendants until more than one year and four months after the complaint was filed. The service was obviously not perfected within the one hundred and twenty days provided by Fed.R.Civ.Proc. 4(m). However, the plaintiffs have shown "good cause" to avoid the result of Fed.R.Civ.Proc. 4(m). First, the petition was filed under seal to protect the interests of the minor child, Brian Logrande, and also to protect the other parties from scorn, scrutiny, and embarrassment. Second, the defendants were put on notice of the suit, although not properly served on November 15, 2000 when the original plaintiffs attorney mailed a copy of the petition to the defendants. Finally, the plaintiffs promptly served the defendants after the complaint was unsealed on March 1, 2002. Therefore, this Court will not dismiss the plaintiffs' claims.
III. CONCLUSION
For the foregoing reasons, the Motion to Dismiss pursuant to Rule 4(m) of the Federal Rules of Civil Procedure (Document No. 7) filed on behalf of the defendants is DENIED.
Accordingly,
IT IS ORDERED that the Motion to Dismiss filed on behalf of the defendants, Jefferson Parish School Board and Sharon J. Bankston (Document No. 7), be, and the same is hereby, DENIED.