Opinion
Civil Action No: 01-2435.
November 8, 2001.
ORDER AND REASONS
Before the Court are defendants Healthcare Company (RCA) and Brenda Jo Simmons' motions to dismiss for insufficiency of service of process and lack of personal jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(5). Because this Court finds that plaintiff has demonstrated good cause for his failure to serve RCA and Simmons properly, defendants' motions are denied.
On August 10, 2001, plaintiff Murungi filed suit against Simmons, RCA and Tulane Hospital alleging violations of 42 U.S.C. § 1983 and various state law claims.
Both Simmons and HCA assert that they were never served with the complaint and now move to dismiss for insufficiency of service of process under Federal Rules of Civil Procedure 12(b)(5) and 4(m).
Rule 4(m) establishes the time limit for service and 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 for the failure, the court shall extend the time for service for an appropriate period.
Under Rule 4(m), the district court has two choices when plaintiff fails to serve defendant within a 120-day period: It either may "dismiss the action without prejudice . . . or direct that service be effected within a specified time." Fed.R.Civ. p. 4(m). The second part of the rule qualifies the district court's choices, making an extension of time mandatory when plaintiff shows good cause. See Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996). When service of process is challenged, the plaintiff carries the burden of proving good cause for the failure to effect timely service. See Gitz v. St. Tammany Parish Hospital, 125 F.R.D. 138 (E.D. La. 1989); Purvis v. Jenkins, 1998 WL 290212, at *2 (E.D. La. 1998).
Good cause has been defined as "at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice, and some showing of good faith on the party seeking an enlargement and some reasonable basis for non-compliance within the time specified is normally required." Purvis, 1998 WL 290212, at *2, internal quotations omitted, citing Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985); Gitz, 125 F.R.D. at 139. More simply stated, a plaintiff shows good cause for delay when a good faith attempt is made to effectuate service, but the service nonetheless fails to satisfy all the requirements set forth in Rule 4. See Chilean Nitrate Corp. v. M/V Hans Leonhardt, 810 F. Supp. 732, 735 (E.D. La. 1992). Finally, "each case must be taken on its own particular facts to determine whether a good faith effort to effectuate service has been made." Id., quoting Brown v. Bellaplast Maschinenbau, 1986 WL 6145, at *3 (E.D.Pa. May 27, 1986).
Here, plaintiff made good faith efforts to serve defendants. He attempted to serve process on Brenda Simmons at the human resources office of Tulane Hospital and on HCA through the CEO of Tulane Hospital, who also serves on the Board of HCA. While such actions hardly exhausted plaintiff's possible avenues for locating and serving defendants, plaintiff did make a good faith effort to effectuate service. Plaintiff is acting pro se. Defendants do not allege bad faith or sinister motive in plaintiff's failure to serve them timely. Further, it appears that HCA and Simmons had notice of the suit, as indicated by their filing a Motion for Extension of Time on August 21, 2001, and a Motion for Admission of Counsel pro hac vice on August 29, 2001. (Rec. Doc. 3 and 5.) Accordingly, this Court finds that plaintiff's good faith attempts to serve defendants, along with defendant's notice of the suit, are sufficient for a finding of good cause. See also Ensenat v. Oreck Corp., 2000 WL 62932 (E.D. La. 2000). Cf. Bishop v. Rakestraw, 1996 WL 407983, at *2 (N.D. Miss. 1996) (plaintiff's repeated attempts to serve process and defendant's actual notice established good cause).
Therefore, defendants' motions to dismiss for insufficiency of service of process are denied. Plaintiff has thirty days from the date of this order to effectuate proper service of process.