Hunsinger v. Gateway Management Associates

169 F.R.D. 152, 1996 U.S. Dist. LEXIS 15416, 1996 WL 596437
CourtDistrict Court, D. Kansas
DecidedSeptember 27, 1996
DocketNo. 95-CV-4199-SAC
StatusPublished
Cited by3 cases

This text of 169 F.R.D. 152 (Hunsinger v. Gateway Management Associates) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hunsinger v. Gateway Management Associates, 169 F.R.D. 152, 1996 U.S. Dist. LEXIS 15416, 1996 WL 596437 (D. Kan. 1996).

Opinion

MEMORANDUM AND ORDER

CROW, District Judge.

On December 8, 1995, Julie Kay Hunsinger filed a complaint against Gateway Management Associates (GMA). Hunsinger’s complaint alleges Title VII violations as well as violations of the Kansas Act Against Dis-. crimination. Hunsinger’s complaint indicates that she received her “Notice of Right to Sue” letter from the EEOC on September 9, 1995.

On May 10, 1996, GMA filed a motion to . dismiss pursuant to Fed.R.Civ.P. 12(b)(2) and . (5) for lack of personal jurisdiction and insufficient service of process. In its motion, GMA acknowledges that Hunsinger attempted to effect service by requesting the law firm of Orrick, Herrington & Sutcliffe, a firm that had performed legal services for GMA in the past, to execute a waiver of service of summons. However, GMA contends that Or-rick, Herrington & Sutcliffe was not authorized to accept service of process in this action and that the firm did not waive service of a summons by Hunsinger. GMA contends that because more than 120 days have elapsed since Hunsinger commenced this action, the court should exercise its discretion under Fed.R.Civ.P. 4(m). Affidavits in support of GMA’s factual allegations are attached to GMA’s memorandum in support of its motion.

Hunsinger responds, essentially arguing that she has made a good faith effort to effect service on GMA. Hunsinger’s counsel indicates that he notified the law firm of Orrick, Herrington & Sutcliffe which had previously represented GMA “in mediation scheduled and commenced between the parties to this action. There was no reason to believe that the firm would not be representing the Defendant in this suit or that they were not authorized to accept or waive Service of Summons.” Counsel for Hunsinger also indicates that he was informed by Joe Cohen of that firm that they were considering the request for waiver of summons and would be responding soon. Plaintiffs counsel, in good faith, relied upon Mr. Cohen’s assurances. It was not until April 1996 that Mr. Cohen informed Plaintiffs counsel that Defendant would not waive service. Hun-singer notes that since that time, he and defendant’s local counsel have engaged in communications, held a telephone planning meeting and are currently preparing an order pursuant to the scheduling conference. Hunsinger also indicates that “[sjervice on the Defendant is in process and imminent.”

In its reply brief, GMA categorically denies several of Hunsinger’s counsel’s allegations. GMA denies that service of process has occurred. “Faced with these inexorable and damning facts, Plaintiff has resorted to making unfounded legal assumptions and factual misrepresentations in a desperate effort to avoid the consequences • of her blatant disregard for proper service procedure in federal court litigation.” Attached to GMA’s reply brief is an affidavit from Joseph Cohen in which he denies, inter alia, making any representations to Hunsinger’s counsel that he or his law firm would waive service of process on behalf of GMA.

On June 14, 1996, the court received a letter from Hunsinger’s counsel requesting a telephone conference to discuss GMA’s mo[154]*154tion.1 In that same letter, counsel indicates that “service has now indeed been appropriately made upon the Defendant herein.”

Fed.R.Civ.P. 4

“Personal service under Rule 4 serves two purposes: notifying a defendant of the commencement of an action against him and providing a ritual that marks the court’s assertion of jurisdiction over the lawsuit. (citations omitted). Rule 4 service of process provides the mechanism by which a court having venue and jurisdiction over the subject matter of an action asserts jurisdiction over the person of the party served.” Oklahoma Radio Associates v. F.D.I.C., 969 F.2d 940, 943 (10th Cir.1992).

In 1993, Fed.R.Civ.P. 4 was amended in several respects. Rule 4(j) was amended and recodified and is now found at 4(m). Rule 4(m) provides in pertinent part:

Time Limit for Service. 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....

Although Rule 4(m) retains much of the same language of former Rule 4(j), “the 1993 amendments substantially changed the scope of discretion to be exercised by district courts under this rule.” Espinoza v. United States, 52 F.3d 838, 840 (10th Cir.1995).

Specifically, former Rule 4(j) allowed the district court to extend the time for service of the summons and complaint only upon a showing of “good cause.” See Fed.R.Civ.P. 4(j) (1987); Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436, 1437 (10th Cir.1994); Jones [v. Frank], 973 F.2d [872] at 873 [(10th Cir.1992)]. The district court was otherwise directed to dismiss the case. See Fed.R.Civ.P. 4(j) (1987). The plain language of Rule 4(m), however, broadens the district court’s discretion by allowing it to extend the time for service even when the plaintiff has not shown good cause. Under Rule 4(m), when a plaintiff fails to serve a defendant within the 120-day period, the district court “shall dismiss the action without prejudice or direct that service be effected within a specified time.” Fed.R.Civ.P. 4(m) (emphasis added). We agree with the Third Circuit that the Rule’s further directive that “if the plaintiff shows good cause for the failure, the court shall extend the time for service,” id. (emphasis added), serves merely as an exception to the general provision by delineating a situation in which an extension of time is mandatory. See Petrucelli, [v. Bohringer and Ratzinger], 46 F.3d [1298] at 1305-06 [(3rd Cir. 1995)].
The Advisory Committee note to Rule 4(m) supports this interpretation:
The new subdivision explicitly provides that the court shall allow additional time if there is good cause for the plaintiffs failure to effect service in the prescribed 120 days, and authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown.
Fed.R.Civ.P. 4(m) advisory committee’s note (1993) (emphasis added).

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169 F.R.D. 152, 1996 U.S. Dist. LEXIS 15416, 1996 WL 596437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunsinger-v-gateway-management-associates-ksd-1996.