Davis-Wilson v. Hilton Hotels Corp.

106 F.R.D. 505, 2 Fed. R. Serv. 3d 6, 1985 U.S. Dist. LEXIS 18367
CourtDistrict Court, E.D. Louisiana
DecidedJune 28, 1985
DocketCiv. A. No. 84-5177
StatusPublished
Cited by32 cases

This text of 106 F.R.D. 505 (Davis-Wilson v. Hilton Hotels Corp.) is published on Counsel Stack Legal Research, covering District Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis-Wilson v. Hilton Hotels Corp., 106 F.R.D. 505, 2 Fed. R. Serv. 3d 6, 1985 U.S. Dist. LEXIS 18367 (E.D. La. 1985).

Opinion

MENTZ, District Judge.

MEMORANDUM OPINION

Plaintiff, Angela Davis-Wilson, filed a motion to set aside the judgment of dismissal entered in this action by the Court on March 25, 1985. The Court heard oral argument on plaintiff’s motion and on defendant’s request for attorney’s fees and expenses on May 1, 1985, and at that time took the motion and defendant’s request under submission. The mover and defendant were both allowed to file supplemental memoranda. The Court has now considered the memoranda, pleadings, affidavits and exhibits submitted in this matter and, based on the record and the law concludes that plaintiff’s motion should be DENIED and defendant’s request should be GRANTED IN PART.

Procedural Background

This action was filed by plaintiff on October 24, 1984 in the Eastern District of Louisiana. Plaintiff alleges that the defendant 1 violated her civil rights by an act of discrimination perpetrated against her on October 24, 1983, while she was a pay[507]*507ing guest at the Atlanta Hilton and Towers in Atlanta, Georgia. Ms. Davis-Wilson was allegedly stopped in the Hilton elevator by a hotel employee and forced to prove she was a paying guest and not a prostitute or drug user. Although the procedural setting in this case is not' complex, the date of occurrence of certain events are crucial to the determination of whether plaintiff’s motion to set aside the judgment of dismissal should be granted. The following relevant procedural events have occurred thus far in this case:

1. October 24, 1984—Plaintiff filed suit. Plaintiff’s action was timely filed on the last day to preserve her Louisiana tort claims.
2. December 19, 1984—Magistrate instructs plaintiff’s counsel to serve summons by January 18, 1985.
3. January 14, 1985—Suit served on John D. Marshall, an attorney for Hilton Hotels.
4. January 23, 1985—Magistrate Chasez gives plaintiff a two-week extension until February 1, 1985 to effect service of process.
5. February 7, 1985—Defendant filed a motion to dismiss plaintiff’s action due to insufficient service of process.
6. February 27, 1985—Plaintiff served Hilton Hotel through its registered agent for service of process.
7. February 28, 1985—Court grants defendant’s motion by minute entry.
8. No motion for reconsideration filed by plaintiff within 15 days allowed by Court in minute entry dated February 28, 1985 or by date of entry of judgment.
9. March 26, 1985—Judgment dismissing plaintiff’s action was entered by the Court.
10. April 9, 1985—Plaintiff files a motion to set aside the judgment of dismissal after the Magistrate and the Court’s law clerk informs plaintiff’s counsel that the mere act of obtaining service on Hilton Hotel on February 27, 1985 did not vacate Court’s grant of defendant’s motion to dismiss and entry of judgment in this action.

This Court granted defendant’s motion to dismiss on February 28, 1985 by minute entry on the basis that defendant had carried its initial burden of proving it was entitled to a dismissal for plaintiff’s lack of service of process and the plaintiff had failed to file any opposition to refute defendant’s argument.

Law

It is plaintiff’s duty to see that each defendant is promptly and effectively notified that an action has been commenced against him. See Schram v. Holmes, 4 F.R.D. 119 (D.Mich.1943); Klishewich v. Mediterranean Agencies, Inc., 42 F.R.D. 624 (E.D.N.Y.1966). The plaintiff or plaintiffs attorney is responsible for prompt service of the summons and a copy of the complaint. See Federal Rules of Civil Procedure, Rule 4(a). Delay in serving a complaint affects every aspect of a defendant’s trial preparation. A delay between filing and service ordinarily is to be viewed more seriously than a delay of a like period of time occurring after service of process. Porter v. Beaumont Enterprise & Journal, 743 F.2d 269, 272 (5th Cir.1984); Veazey v. Young’s Yacht Sale & Service, Inc., 644 F.2d 475, 478 (5th Cir.1981). 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 whom such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed without prejudice, upon the Court’s own initiative with notice to such party or upon motion. Fed.R. Civ.P. 4(j) (emphasis added). The harsh sanction of Rule 4(j) is appropriate to those cases in which non-service was the result of mere inadvertence or heedlessness. Geller v. Newell, 602 F.Supp. 501, 502 (S.D.N.Y.1984); Arroyo v. Wheat, 102 F.R.D. 516, 518 (D.Nev.1984); Coleman v. Greyhound Lines, Inc., 100 F.R.D. 476, 477 (N.D.Ill.1984). However, where plaintiff has made [508]*508a reasonable effort to serve defendant, Congress intended that the 1-20 day deadline be extended, if needed, un'der Rule 6(b) [enlargement of period of time for an act to be done or completed]. 1982 U.S.Code Cong. & Ad.News 4434, 4442; Getter v. Newell, 602 F.Supp. at 502; Arroyo v. Wheat, supra. In other words, where a plaintiff can show good cause why service was not effected within 120 days after the filing of the complaint, dismissal is not mandated by Rule 4(j). Arroyo v. Wheat, supra.

The mere fact that a defendant received actual notice is not sufficient if there has not been compliance with the plain requirements of the Federal Rules of Civil Procedure, Rule 4. See Tart v. Hudgins, 58 F.R.D. 116 (M.D.N.C.1972); Rixner v. White, 417 F.Supp. 995 (D.N.D.1976) [although a defendant may have full knowledge that an action has been commenced against him, a court, nevertheless, lacks jurisdiction to enter a judgment against him unless personal jurisdiction has been obtained by strict compliance with the statute designating the method of obtaining such jurisdiction]; Frasca v. Eubank, 24 F.R.D. 268 (E.D.Pa.1959) [proof of actual notice alone will not be sufficient, substantial compliance with Federal Rules of Civil Procedure, Rule 4 is required]. A defendant must be served in accordance with Rule 4’s requirement or there is no personal jurisdiction; neither actual notice nor simply naming the defendant in the complaint's caption will subject the defendant to personal jurisdiction if service is not made in substantial compliance with Rule 4. Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982).

In the present case, the plaintiff has failed to substantially comply with Fed. R.Civ.P.

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Cite This Page — Counsel Stack

Bluebook (online)
106 F.R.D. 505, 2 Fed. R. Serv. 3d 6, 1985 U.S. Dist. LEXIS 18367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-wilson-v-hilton-hotels-corp-laed-1985.