Opinion
Case No. 2:02-CV-78TC
March 20, 2003
ORDER
This matter is before the court on several motions concerning Plaintiff Christopher L. Sorensen's failure to serve Defendants Alumax, Inc. and Alcoa Extrusions, Inc. (collectively, the "Alumax Defendants") pursuant to Federal Rule of Civil Procedure 4(m). Specifically, the Alumax Defendants have moved for dismissal of the Complaint as against them without prejudice, Defendant Belco Industries, Inc. ("Belco") has moved for discovery, and Mr. Sorensen has moved to extend the time to effect service. The court's decision as to each of these motions is set forth in this Order.
BACKGROUND
Christopher L. Sorensen, who was employed by Alcoa Extrusions, Inc., a subsidiary of Alumax, Inc. ("Alumax"), was injured on October 17, 2000, while working Extrusions's Spanish Fork facility. On October 11, 2001, Mr. Sorensen filed a Complaint against several Defendants in the Fourth District Court of Utah County, State of Utah, claiming negligence and strict liability due to alleged defects in a press, stretcher, and other equipment. Belco filed a notice of removal on January 28, 2002, based on diversity jurisdiction.
On November 1, 2002, the Alumax Defendants filed a motion (1) to dismiss without prejudice for Mr. Sorensen's failure to effectuate service pursuant to Federal Rule of Civil Procedure 4(m), and (2) to dismiss with prejudice pursuant to the exclusivity provision of Utah's Workers' Compensation Act. Defendants Belco and Omav SpA ("Omav") each opposed the Alumax Defendants' motion to dismiss, primarily on the basis of the Alumax Defendants' workers' compensation exclusivity argument. These Defendants, however, stated (1) that the Alumax Defendants would not be prejudiced if the court extended the time for service of process and (2) that dismissing the Alumax Defendants would be a waste of judicial resources. Mr. Sorensen opposed the motion to dismiss and filed a motion to extend the time in which to serve the Alumax Defendants.
In their reply memorandum, the Alumax Defendants "withdr[e]w their Motion to the extent that they sought substantive dismissal of Plaintiff's Complaint premised upon the Utah Workers' Compensation Act." (Alumax Defs.' Reply and Resp. to Mot. Extend Time ("Alumax Defs.' Reply") at 3.) Consequently, the only issue before the court is whether the Alumax Defendants are entitled to dismissal of the Complaint, without prejudice, for Plaintiff's failure to comply with Rule 4(m), or whether Mr. Sorensen should have additional time in which to serve the Alumax Defendants.
This case is scheduled for trial on May 3, 2004. The motion cutoff date is November 15, 2003, and the discovery cutoff date is September 15, 2003.
DISCUSSION
The Alumax Defendants move to dismiss the Complaint as against them pursuant to Federal Rule of Civil Procedure 4(m). Rule 4(m) provides,
If service of the summons and complaint is not made upon a defendant within 120 days after the filling 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.
The Tenth Circuit has adopted a two-step approach to motions to dismiss under Rule 4(m). See Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995). First, courts should determine "whether the plaintiff has shown good cause for the failure to timely effect service." Id. If the plaintiff shows good cause, he or she "is entitled to a mandatory extension of time." Id. If the plaintiff does not show good cause, the court should consider whether a permissive extension of time is warranted. See id. "At that point the district court may in its discretion either dismiss the case without prejudice or extend the time for service." Id.
The Tenth Circuit has explained that the "good cause" standard "should be read narrowly to protect only those plaintiffs who have been meticulous in their efforts to comply with the Rule." Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436, 1438 (10th Cir. 1994) (discussing Federal Rule of Federal Procedure 4(j), the predecessor to Rule 4(m)) (quoting In re City of Philadelphia Litig., 123 F.R.D. 512, 514 n, 2 (E.D. Pa. 1988)); see also Espinosa, 52 F.3d at 841 (stating that the Tenth Circuit's "cases that interpret Rule 4(j) remain unaffected insofar as they provide guidance in determining whether good cause has been shown").
Inadvertence, negligence, ignorance of the service requirements, and reliance on a process server have all been determined not to constitute good cause. . . . Similarly, the fact that a defendant may have had actual notice of the suit, and has suffered no prejudice, does not constitute good cause.Lopez v. United States, 129 F. Supp.2d 1284, 1295 (D.N.M. 2000) (citation omitted).
In Espinoza, the Tenth Circuit provided "several factors [to] guide the district court" in its decision concerning whether to grant a permissive extension of time. Espinoza, 52 F.3d at 842. The court explained that "[r]elief may be justified . . . if the applicable statute of limitations would bar the refiled action." Id. (quoting Fed.R.Civ.P. 4(m) advisory committee's note (1993)). A permissive extension of time might also be appropriate where a plaintiff "has tried, but failed, to effect service upon the United States." Id. Further, courts should consider a plaintiffs pro se status. See id. at 842 n. 8; see also Fed.R.Civ.P. 4(m) advisory committee's note (1993)).
Given the Tenth Circuit's interpretation of the good cause standard, Mr. Sorensen has not established good cause. In his "Rule 56(f) Affidavit," Mr. Sorensen explains that he and his attorney "jointly determined not to serve the Alumax related corporations immediately with the complaint until [they] could conduct some initial discovery with the other named parties." (Sorensen Aff. ¶ 4.) Mr. Sorensen emphasizes that he filed suit in state court, and that "[a]t the time that plaintiff filed the complaint naming the Alumax defendants and elected not to serve them, the procedure was governed by State Rule 4 which allowed timely service of process prior to the trial." (Id. ¶ 5.) Mr. Sorensen's initial tactical decision and possible subsequent inadvertence do not constitute "meticulous. . . efforts to comply with the Rule."Despain, 13 F.3d at 1438 (quoting In re City of Philadelphia Litig., 123 F.R.D. at 514 n. 2).
Utah Rule of Civil Procedure 4(b) provides that "[i]n any action brought against two or more defendants on which service has been obtained upon one of them within 120 days. . ., the other or others may be served or appear at any time prior to trial" Utah R. Civ. P. 4(b).
Although Mr. Sorensen has not shown good cause for the failure to timely serve the Alumax Defendants, the court may, in its discretion, extend the time for service. See Fed.R.Civ.P. 4(m); Espinoza, 52 F.3d at 841. Mr. Sorensen, in his memorandum supporting his motion to extend the time for service, gives the following reasons for allowing additional time to serve the Alumax Defendants: (1) "there has been no permanent prejudice in having the parties answer of this date"; (2) the Alumax Defendants have already appeared by counsel, seeking affirmative relief; (3) complete relief cannot be provided among the parties without having the Alumax Defendants present; (4) Mr. Sorensen would be able to re-file the action within one year of the dismissal see Utah Code Ann. § 78-12-40; and (5) "[i]t would be a poor use of counsel and the Court's time to dismiss the Alumax defendants who are presently represented in this matter." (Pl.'s Mem. Supp. Mot. Extend Time for Service ("Pl.'s Supp. Mem.") at 2.) In sum, Mr. Sorensen argues that a dismissal without prejudice pursuant to Rule 4(m) "would be an unnecessary waste of judicial time and expense." (Id.)
Defendant Omav opposes the Alumax Defendants' motion to dismiss, arguing that under the controlling state statutes, the Alumax Defendants' fault must be compared with the alleged fault of the other parties in this case. See Utah Code Ann. §§ 78-27-37 to 78-27-42 (2001). Similarly, if the court dismisses the Complaint as against Alumax, Mr. Sorensen would likely file a second complaint naming only the Alumax Defendants. It would not be a wise use of judicial resources to hold two virtually identical trials when, if Mr. Sorensen quickly effects service in this case, this matter will be resolved in one trial.
The Alumax Defendants argue that they have been deprived of participation in the discovery process and would be prejudiced if they were served at this late point in the litigation. They also state that they, without counsel, permitted the other parties to perform a site inspection because the parties expressly represented that the Alumax Defendants were not named as parties. But in view of the fact that only limited discovery has been conducted and the trial date is more than one year in the future, any prejudice the Alumax Defendants would suffer is minimal and does not outweigh considerations of judicial economy.
ORDER
For the foregoing reasons,
1. The Alumax Defendants' Motion to Dismiss is DENIED.
2. Mr. Sorensen's Motion for Additional Time to Effect Service is GRANTED. Mr. Sorensen must effect service on or before April 16, 2003.
3. Defendant Belco's motion pursuant to Rule 56(f) of the Federal Rules of Civil Procedure is DENIED as MOOT.