Summary
dismissing a complaint where plaintiff failed to timely serve summons because “Section 1448 does not provide for any additional time in which to perfect service”
Summary of this case from Rice v. Alpha Sec., Inc.Opinion
3:03-CV-66
April 2, 2003
ORDER
THIS MATTER comes before the Court upon Defendant's motion to dismiss, filed February 18, 2003. Plaintiff filed a response on March 6, 2003. Defendant filed a reply on March 17, 2003. Therefore, the matter is ripe for consideration by the Court.
Defendant moves for dismissal under Fed.R.Civ.P. 12(b)(2)and 12(b)(5) because it was not timely filed with a summons in this case. Plaintiff responds that Defendant was properly served with a federal summons after removal pursuant to 28 U.S.C. § 1448, which provides that: "In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court." Plaintiff maintains that § 1448 grants this Court jurisdiction over a case in which process was not properly served within the state-law time limits, provided that entirely new process, with entirely new time limits, is served. This is not a plausible reading of the statute. If the rule were as Plaintiff urges the Court to hold, Plaintiff could bypass the legitimate limitations on causes of action and on service of process in those actions.
The Summons in this case issued initially on November 15, 2002. The end of the time period during which Plaintiff could serve the summons, have the time for its service extended through endorsement, or seek issuance of an alias or pluries summons ended on February 13, 2003. As of February 13, Plaintiff's case died. It was removed on February 18, 2003. On that date, in State court, it would be treated as having never been filed. That must be the holding of this Court. Section 1448 provides authority for a plaintiff in a removal action to perfect service of process after removal by the issuances of a federal summons. However, § 1448 requires that perfection of service must occur before the time limits imposed by State law are passed. This makes sense; a Plaintiff in a removal case can no longer seek a State court summons to correct any imperfections in service. He must seek a summons from the District Court. But the time limit remains. Section 1448 does not provide for any additional time in which to perfect service; it simply provides for the necessary means to do so after removal. This is the holding of a number of Courts of Appeals. See, e.g., Witherow v. Firestone Tire Rubber Co., 530 F.2d 160, 168 (3d Cir. 1976); Osborne v. Sandoz Nutrition Corp., 67 F.3d 289, 1995 WL 597215, *2 (1st Cir. 1995); Marshall v. Warwich, 155 F.3d 1027, 1033 (8th Cir. 1998). While the Fourth Circuit has not directly examined this question, its decisions lead this Court to believe that it similarly would hold that a case, "dead" for failure to properly effectuate service of process, cannot be resurrected by resort to § 1448. The Court concludes that process was not properly served and that it, therefore, lacks personal jurisdiction over the Defendant.
THEREFORE, IT IS HEREBY ORDERED that the Defendant's motion to dismiss is GRANTED.