Opinion
Civil Action No. 99-6244
August 10, 2001
MEMORANDUM ORDER
This is a tax refund case. In plaintiff's words, "taxpayer makes this claim for 1977 taxes overpaid." The complaint was filed on December 8, 1999. It has never been served.
Presently before the court is plaintiff's "Motion to Reopen" which was filed in response to the court's notice to show cause why this suit should not be dismissed for failure to make timely service pursuant to Fed.R.Civ.P. 4(m). In the motion, plaintiff attempts to excuse this failure on the grounds that "the attorney who had originally handled the case is no longer with the Law Office of Benjamin L. Winderman" and the case file "until recently could not be located."
The complaint is signed by Benjamin Winderman. The deadline to effect service was April 7, 2000. Between April 19, 2000 and July 10, 2001, when the notice to show cause was issued, the deputy court clerk telephoned Mr. Winderman seven times. She spoke with Mr. Winderman three times and his secretary four times. On each occasion, the deputy clerk advised that service of process had not been effected and the case was thus subject to dismissal. On each occasion the deputy clerk spoke with the secretary, she stated she would relate the message to Mr. Winderman. On each occasion the deputy clerk spoke to Mr. Winderman, he stated either that he "will look into it" or he "will check into it" and "get back" to her. He never did "get back" to the deputy clerk.
Mr. Winderman signed the complaint and caused it to be filed. It was his obligation to ensure that timely service was made whether or not the actual task had been assigned to a subordinate. Inadvertence or negligence of counsel does not constitute good cause for a failure timely to serve a complaint. See Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3d Cir.), cert. denied, 484 U.S. 965 (1987). A good faith effort to comply and a reasonable basis for noncompliance are necessary to justify a finding of good cause. See MCI Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995), cert. denied, 519 U.S. 815 (1996). See also Mused v. U.S. Department of Agriculture, 169 F.R.D. 28, 32 (W.D.N.Y. 1996) (good cause generally found only where exceptional circumstances beyond plaintiff's control prevent timely service); T S Rentals v. U.S., 164 F.R.D. 422, 425 (N.D.W. Va. 1996).
This also is not a case that warrants a discretionary extension. There has been no showing of any effort at service for over nineteen months, no request for an extension during the allotted time for service, no response to repeated warnings from the court and no reasonable justification offered for such complete lack of diligence. See McCurdy v. American Board of Plastic Surgery, 157 F.3d 191, 196-97 (3d Cir. 1998); Mused, 169 F.R.D. at 33. ACCORDINGLY, this day of August, 2001, IT IS HEREBY ORDERED that plaintiff's Motion to Reopen is DENIED and, pursuant to Fed.R.Civ.P. 4(m), the above action is DISMISSED without prejudice.
The court notes that a cognizable claim is not easily discerned from the complaint and the presence of subject matter jurisdiction is far from clear. Plaintiff appears to complain that while he was satisfying a deficiency on his 1977 return with monthly payments through April 1986 under an installment agreement with the IRS, the agency withheld refunds for the 1981-1984 tax years which effectively resulted in double payment. He also alleges that these withheld funds were refunded to him in December 1997. How this results in a "claim for 1977 taxes overpaid" is not readily apparent. Also, while plaintiff states he engaged in telephone conversations and correspondence with the IRS, he does not assert that he ever filed an administrative claim with the Secretary of the Treasury within three years of the filing of the 1977 return or two years of the final payment of taxes for that year in April 1986. In the absence of a proper administrative claim, the court would lack jurisdiction to entertain even a timely served complaint for a refund.See 26 U.S.C. § 7422(a); U.S. v. Dalm, 494 U.S. 596, 602 (1990).