MacCauley v. Wahlig

108 A.L.R. Fed. 879, 130 F.R.D. 302, 1990 U.S. Dist. LEXIS 4380, 1990 WL 47277
District Court, D. Delaware·Decided March 26, 1990·No. Civ. A. No. 89-347-JLL·Published·Cited by 5 cases

Opinion

OPINION

LATCHUM, Senior District Judge.

1. BACKGROUND

Peggy A. MacCauley (“MacCauley”) was injured on August 28, 1987, while roller skating at the Christiana Skating Center. She filed suit on July 5, 1989, against Charles T. Wahlig, Constance S. Wahlig, the Christiana Skating Center, and Christiana Skating Center, Ltd. (collectively “the Wahligs”), alleging negligence in the operation and supervision of the skating center. See Docket Item (“D.I.”) l.1

MacCauley initiated service of process by first class mail on July 7, 1989.2 The Wahligs never returned an acknowledgment of service, although the parties’ attorneys spoke during the week of July 24, 1989. The next week the Wahligs’ attorney sent MacCauley’s counsel a letter stating that an answer would be filed if the individual defendants were dismissed from the case. The individual defendants were never dismissed, an answer was never filed, and MacCauley has never served process personally on the Wahligs.

The Wahligs now move to dismiss MacCauley’s complaint for failure to comply with Federal Rule of Civil Procedure 4(j). This Court has jurisdiction pursuant to 28 U.S.C. § 1332.

II. DISCUSSION

Federal Rule of Civil Procedure 4(j) states:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the com[304] plaint 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____

The Third Circuit rigidly construes the requirements of this rule. “[T]he Court of Appeals for the Third Circuit has taken a strict approach towards the Rule, consistently upholding dismissals of actions where there has not been a meticulous effort to comply with its service provisions.” In re City of Philadelphia Litigation, 123 F.R.D. 515 (E.D.Pa.1988); see also Stranahan Gear Co., Inc. v. NL Industries, Inc., 800 F.2d 53, 56 (3rd Cir.1986) (the language of Rule 4 means “precisely” what it states).

Concerning the present factual situation, in Green v. Humphrey Elevator & Truck Co., 816 F.2d 877 (3d Cir.1987), the court held that “personal service is required to effectuate service under Rule 4(c)(2)(C)(ii) if a defendant fails to return an acknowledgement within the designated time period.” Id. at 879-80 (emphasis added). The court explicitly rejected the notion that a defendant’s actual notice of an action could excuse service of process, and concluded that, in order to avoid unnecessary evidentiary hearings, “the better approach, where receipt has not been verified by return acknowledgement, is to require personal service upon the defendant.” Id. at 881; see also United States v. Nuttall, 713 F.Supp. 132 (D.Del.) (“actual notice of a lawsuit is no substitute for proper service of process”), aff'd, 893 F.2d 1332 (3d Cir.1989).

In the present case, the Wahligs received only one copy of the acknowledgment, instead of the two copies required by Rule 4. However, even a defendant who intentionally refuses to return, within twenty days, a properly served acknowledgement must be personally served within 120 days of filing the complaint. See Humphrey Elevator & Truck Co., 816 F.2d at 882. A plaintiff has only two means to avoid dismissal: a Rule 6(b) motion prior to the expiration of the 120 day period, or a showing of good cause or excusable neglect. Id. at 883. In Humphrey Elevator & Truck Co. the court acknowledged the severity of the result if the statute of limitations has run, see id. at 879 n. 6, but nevertheless concluded that dismissal was dictated by the Rule. See also Lovelace v. Acme Markets, 820 F.2d 81, 84 (3d Cir.), cert. denied, 484 U.S. 965, 108 S.Ct. 455, 98 L.Ed.2d 395 (1987).

In order to show excusable neglect, the plaintiff must demonstrate good faith and “some reasonable basis for noncompliance within the time specified in the rules.” Dominic v. Hess Oil Co., 841 F.2d 513, 517 (3d Cir.1988); Vietmeier, 126 F.R.D. at 500. The excusable neglect provision, in some circumstances, protects only those “diligent plaintiffs who, though making every effort to comply with the dictates of the rule, nonetheless exceed the 120-day limit____” Humphrey Elevator & Truck Co., 816 F.2d at 880. An inadvertent lack of oversight by plaintiff’s counsel does not constitute good cause. See Braxton v. United States, 817 F.2d 238, 242 (3d Cir. 1987); Vietmeier v. Farley, 126 F.R.D. 498 (W.D.Pa.1989). As discussed below, MacCauley fails both the “some reasonable basis” test stated in Dominic v. Hess, and the “every effort to comply” test of Humphrey Elevator & Truck.

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MacCauley v. Wahlig, 108 A.L.R. Fed. 879, 130 F.R.D. 302, 1990 U.S. Dist. LEXIS 4380, 1990 WL 47277 (D. Del. 1990).

108 A.L.R. Fed. 879 (MacCauley v. Wahlig) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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