Boltes v. Entex

158 F.R.D. 110, 1994 U.S. Dist. LEXIS 15304, 1994 WL 590851
CourtDistrict Court, S.D. Texas
DecidedOctober 25, 1994
DocketCiv. A. No. H-92-2171
StatusPublished
Cited by1 cases

This text of 158 F.R.D. 110 (Boltes v. Entex) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boltes v. Entex, 158 F.R.D. 110, 1994 U.S. Dist. LEXIS 15304, 1994 WL 590851 (S.D. Tex. 1994).

Opinion

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

I. Introduction.

Pending before the court is Defendant En-tex’s Motion to Dismiss (Docket Entry # 28). Entex seeks dismissal of this action for insufficiency of service of process under Fed. R.Civ.P. 12(b)(5). Plaintiff John C. Boltes (“Boltes”) filed no response to Entex’s motion. Therefore, the motion is deemed unopposed under Local Rule 6(E). Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, this court is of the opinion that Entex’s motion should be granted.

II. Background.

On July 21, 1992, Boltes filed an Application to Proceed In Forma Pawperis (Docket Entry # 1). United States District Judge Norman Black granted Boltes’ application the same day. Boltes filed a complaint against Entex on July 22, 1992, alleging that Entex discriminated against him on the basis of his national origin and mental handicap in violation of 42 U.S.C. § 2000e-5.

On August 5, 1992, Boltes went to the offices of Entex at 1600 Smith Street in Houston, Texas, and attempted personally to serve process upon Paul Chamberlain, Director of Personnel for Entex. Mr. Chamberlain, however, was unavailable. Next, Boltes requested to speak with David Owen. Upon being informed that Mr. Owen also was unavailable, Boltes left a summons with a security guard who was deployed to escort him from the building. Boltes did not leave a copy of the complaint with anyone at En-tex.

On September 1, 1992, Boltes telephoned Richard Brann (“Brann”), counsel for Entex, to ask whether Entex would respond to the “paper” he delivered. Brann explained that Boltes had not properly served Entex, but that he could not advise him how to serve the [112]*112lawsuit. Brann suggested that Boltes either hire an attorney or read the Federal Rules of Civil Procedure to learn the steps for serving a defendant. According to Brann, during the telephone conversation, Boltes implied that he would try to serve Entex correctly and “get something going.”

On October 22,1992, Boltes was sentenced to a term of imprisonment in the Texas Department of Criminal Justice — Institutional Division for possession of cocaine. Due to his incarceration, Boltes failed to appear before this court for an initial scheduling conference on November 3, 1992. Boltes also failed to appear before United States District Judge David Hittner for a show cause hearing on November 18, 1992. As a result, Judge Hittner dismissed Boltes’ case for want of prosecution on November 18, 1992. Boltes was paroled on August 9, 1993, and his ease was reinstated on March 21, 1994. To date, Boltes has made no further effort to effect service.

III. Analysis.

Entex claims that this action should be dismissed because Boltes failed to comply with the requirements of Fed.R.Civ.P. 4(c)(2) and (m) when attempting to serve Entex.

A. Fed.R.Civ.P. Mm).

Entex asserts that Boltes did not comply with the 120-day limitation period for serving a summons and complaint currently set out in Fed.R.Civ.P. 4(m). It is well established, however, that when considering whether a defendant has been properly served, a court looks to the version of the Federal Rules of Civil Procedure in effect at the time the complaint is filed. Turner v. United States Envtl. Protection Agency, 848 F.Supp. 711, 713 (S.D.Miss.1994); Crysen/Montenay Energy Co. v. E & C Trading, 166 B.R. 546, 552 (S.D.N.Y.1994). Therefore, because this action was filed prior to the date the 1993 amendments to the Federal Rules of Civil Procedure took effect, this court must look to the 1987 version of the Rules to determine whether Boltes complied with the applicable time limit for serving Entex.

In the 1987 version, Rule 4(j) governs the time limit for service of process. Fed.R.Civ.P. 4(j) (1987); Crysen/Montenay Energy Co. v. E & C Trading, 166 B.R. at 552. Under the 1993 amendments to the rules, Rule (4)(j) was recodified as Rule 4(m). While the amendments change the wording slightly, the substance of the rule remains unchanged. Id.

Former Rule 4(j) provides in pertinent part:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

Thus, former Rule 4(j) mandates dismissal of a case in which service is not accomplished within 120 days after the filing of the complaint, unless good cause is shown for failing to effect service within that time period. Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1348 (5th Cir.1992); Geiger v. Allen, 850 F.2d 330, 332 (7th Cir. 1988); Braxton v. United States, 817 F.2d 238, 240 (3d Cir.1987); Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1305 (5th Cir.1985); see also 4A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1165 (1987).

The plaintiff bears the burden of showing good cause. Fed.R.Civ.P. 4(j) (1987); Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir.1988); Geiger v. Allen, 850 F.2d at 333; Winters v. Teledyne Movible Offshore, Inc., 776 F.2d at 1305; Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir.1985). While “good cause,” at a minimum, means excusable neglect, a plaintiff also may be required to show that (1) the party to be served personally received actual notice of the lawsuit; (2) the defendant would not suffer any prejudice by the court extending the 120-day deadline; and (3) the plaintiff would be severely prejudiced if his complaint were dismissed. Boudette v. Barnette,

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158 F.R.D. 110, 1994 U.S. Dist. LEXIS 15304, 1994 WL 590851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boltes-v-entex-txsd-1994.