MacCauley v. Wahlig

108 A.L.R. Fed. 879, 130 F.R.D. 302, 1990 U.S. Dist. LEXIS 4380, 1990 WL 47277
CourtDistrict Court, D. Delaware
DecidedMarch 26, 1990
DocketCiv. A. No. 89-347-JLL
StatusPublished
Cited by5 cases

This text of 108 A.L.R. Fed. 879 (MacCauley v. Wahlig) is published on Counsel Stack Legal Research, covering District Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
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).

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]*304plaint 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.

MacCauley argues that her failure to properly serve process should be excused because the defendants created a belief that an answer would be filed. D.I. 6 at 4. MacCauley alleges that during the July 26 telephone conversation Wahligs’ attorney stated that there were no pending jurisdictional issues. See id. at Exhibit A, p. 1; id. at Exhibit C at ¶ 5. If Wahlig had represented to MacCauley that there were no jurisdictional issues, then Wahlig would have waived objections to personal jurisdiction. Such a waiver, if made, would be effective. See Insurance Corporation of Ireland, Ltd. v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 704, 102 S.Ct. 2099, 2105, 72 L.Ed.2d 492 (1982) (personal jurisdiction may be stipulated to or waived by the defendant, or “a defendant may be estopped from raising the issue.”); Roque v. United States, 857 F.2d 20, 21-22 (1st Cir.1988) (defendant’s acts that do not put [305]*305plaintiff on notice of a deficiency in service of process may constitute “good cause” and excuse proper service); see also Prince Manufacturing, Inc. v. Bard International Associates, Inc., 1988 WL 142407 at *1 (D.N.J. Dec. 22, 1988) (defendant’s assertion, made during settlement negotiations, that defendant would not object to jurisdiction or venue constitutes a waiver of a personal jurisdiction defense). At oral argument, however, the Wahligs denied unconditionally waiving personal jurisdiction.

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108 A.L.R. Fed. 879, 130 F.R.D. 302, 1990 U.S. Dist. LEXIS 4380, 1990 WL 47277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maccauley-v-wahlig-ded-1990.