Opinion
Case No: 5:12-CV-516-Oc-34PRL
03-01-2013
DIANE KROCK, Plaintiff, v. TOYOTA MOTOR CORPORATION, TOYOTA MOTOR SALES, U.S.A., INC., TOYOTA MOTOR NORTH AMERICA, INC., TOYOTA MOTOR ENGINEERING & MANUFACTURING NORTH AMERICA, INC. and BOCH TOYOTA, INC. Defendants.
ORDER
This cause is before the Court on Plaintiff's pro se Motion for Extension of Time for 30 Days to Serve Defendants (Doc. 17) filed on February 26, 2013. Plaintiff represents that she seeks an extension of service because of numerous health issues.
Pursuant to Rule 4(m), Fed. R. Civ. P., service of the summons and complaint must be made within 120 days after filing the complaint. The Court has discretion to extend the time for service. See Rule 4(m), Fed. R. Civ. P.; Horenkamp v. Van Winkle and Co., 402 F.3d 1129, 1132-33 (11th Cir. 2005) (holding that court may extend the time for service of process under Rule 4(m) even in the absence of a showing of good cause). Notably, "the 120-day period provided by Rule 4(m) is not restarted by the filing of an amended complaint except as to those defendants newly added in the amended complaint." Kennedy v. Grova, 2012 WL 1368139 (S.D. Fla. Apr. 19, 2012) (quoting Bolden v. City of Topeka, Kan., 441 F.3d 1129, 1148 (10th Cir. 2006) (citing Carmona v. Ross, 376 F.3d 829 (8th Cir. 2004); see also Lindley v. City of Birmingham, Ala., 452 F. App'x 878, 880 (11th Cir. 2011) (finding that where a plaintiff files an amended complaint that "names a new defendant, the plaintiff has 120 days from the date on which the amended complaint was filed to serve that defendant with process."). Moreover, construing Rule 4(m) in this way "prevents the plaintiff from repeatedly filing amended complaints 'to extend the time for service indefinitely.'" Kennedy, 2012 WL 1368139, at *3 (citing Bolden, 441 F.3d at 1148 (quoting Del Raine v. Carlson, 826 F.2d 698, 705 (7th Cir. 1987)).
Here, Plaintiff filed her original Complaint on September 14, 2012, against "Toyota Motor Corporation," "Toyota Motor Sales U.S.A.," and "Does 1-10." (Doc. 1). Subsequently, Plaintiff filed an Amended Complaint on February 1, 2013, against "Toyota Motor North America, Inc.," "Toyota Motor Engineering & Manufacturing North America, Inc.," "Toyota Motor Sales, USA Inc.," "DeLuca Toyota, Inc.," and "Boch Toyota, Inc." (Doc. 14). Then, also on February 1, 2013, Plaintiff filed a Second Amended Complaint against "Toyota Motor North America, Inc.," "Toyota Motor Engineering & Manufacturing North America, Inc.," "Toyota Motor Sales, USA Inc.," "Toyota Motor Corp.," and "Boch Toyota, Inc." (Doc. 15).
Plaintiff's Amended Complaint (Doc. 14) was originally filed on January 18, 2013, as a new case (see Diane Krock v. Toyota Motor Corp., et al., Case No.: 5:13-cv-32-Oc-22PRL); however, upon Plaintiff's Motion (Doc. 12), it became clear to the Court that it was Plaintiff's intent that this document be filed as her Amended Complaint in this action. Accordingly, on February 1, 2013, the document was moved from Case No.: 5:13-cv-32-Oc-22PRL, and correctly filed in this case as her Amended Complaint (see Docket entry dated February 1, 2012, Doc. 14).
Since Plaintiff brought suit against "Toyota Motor Corporation" and "Toyota Motor Sales U.S.A" on September 14, 2012, Plaintiff was required to serve these defendants within 120-days of that date. Such time has now passed. Based on Plaintiff's Motion (albeit untimely in this regard) requesting an extension of service and the Court's discretion to extend the deadline for service, Plaintiff's motion is granted as to these defendants. Accordingly, Plaintiff shall serve "Toyota Motor Corporation" and "Toyota Motor Sales U.S.A" on or before April 1, 2013.
In addition, since Plaintiff added the following defendants - "Toyota Motor North America, Inc.," "Toyota Motor Engineering & Manufacturing North America, Inc.," and "Boch Toyota, Inc." - with her Amended Complaint (Doc. 14), her deadline to serve these defendants is 120-days after filing the Amended Complaint. Thus, Plaintiff still has more than two months to serve these defendants. Accordingly, her motion to extend as to these defendants is denied at this time.
Based on the foregoing, Plaintiff's Motion (Doc. 17) is GRANTED IN PART and DENIED IN PART as stated herein.
IT IS SO ORDERED.
DONE and ORDERED in Ocala, Florida on March 1, 2013.
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PHILIP R. LAMMENS
United States Magistrate Judge
Copies furnished to:
Counsel of Record
Unrepresented Parties