Sheets v. Schlear

132 F.R.D. 391, 1990 U.S. Dist. LEXIS 13906, 1990 WL 157362
CourtDistrict Court, D. New Jersey
DecidedOctober 18, 1990
DocketCiv. A. No. 89-1519 (SSB)
StatusPublished
Cited by2 cases

This text of 132 F.R.D. 391 (Sheets v. Schlear) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sheets v. Schlear, 132 F.R.D. 391, 1990 U.S. Dist. LEXIS 13906, 1990 WL 157362 (D.N.J. 1990).

Opinion

OPINION

BROTMAN, District Judge.

Defendant, Helen Schlear, seeks the dismissal of Plaintiffs’ Complaint pursuant to Fed.R.Civ.P. 12(b)(5). For the following reasons the motion will be granted.

I. FACTS AND PROCEDURE

Plaintiffs filed a complaint on April 10, 1989, alleging that Defendant’s negligent operation of her automobile injured the Plaintiffs. This court notified Plaintiffs by letter on April 20, 1989, that their Complaint failed to plead properly diversity of citizenship. Plaintiffs cured this defect by filing an Amended Complaint on May 3, 1989.

In accordance with Fed.R.Civ.P. 4(a), the Clerk’s Office issued Plaintiffs a summons to serve on the Defendant. Rule 4(j) required Plaintiffs to serve the summons and a copy of the complaint on the Defendant within 120 days of the filing of the Complaint. Plaintiffs faced a deadline of August 31, 1989.

On May 17,1989 Plaintiffs’ counsel allegedly mailed a summons and complaint to the Sheriff of Philadelphia County for service of process in accordance with Fed.R. Civ.P. 4(c)(2)(C)(i). Relying on the Sheriff to serve the Defendant, Plaintiffs did not attempt service by mail pursuant to Fed.R. Civ.P. 4(c)(2)(C)(ii).

On August 21,1989, ten days prior to the expiration of the 120-day deadline, Plaintiffs had yet to receive an Affidavit of Service. Plaintiffs’ counsel telephoned the Sheriff of Philadelphia County to determine whether the Sheriff had in fact served process upon the Defendant. A representative of the Sheriff’s office informed counsel that the office had either never received the summons and complaint or had misplaced them. Counsel mailed the Sheriff’s office a second copy of the complaint and summons. Although the deadline was rapidly approaching, Plaintiffs did not move for an enlargement of time to effectuate service pursuant to Fed.R.Civ.P. 6(b).

Plaintiffs’ counsel telephoned the Sheriff again on October 10, 1989, 40 days past the deadline. A representative informed- him that the office received the summons and complaint and forwarded them to a Deputy for service on September 28, 1989, 28 days after the deadline. Plaintiffs do not state in their papers that the representative gave counsel any indication as to when the service might be effectuated. On December 5, 1989, slightly three months past the deadline, Plaintiffs received a Return of Service from the Sheriff, indicating that as of October 10, 1989 the Sheriff was unable to serve the summons and complaint on the Defendant. The Sheriff marked the document, “[n]o answer after numerous attempts.” Plaintiffs then hired a private process server, who effectuated service on February 9, 1990, slightly five months past the deadline.

Prior to the receipt of service, this court twice notified Plaintiffs of the possibility of dismissal of the action for lack of prosecution in accordance with Rule 30 A of the General Rules of the District Courts for the District of New Jersey. Plaintiffs’ counsel filed affidavits indicating his attempts at service, but never requested an [393]*393enlargement of time to effectuate service pursuant to Fed.R.Civ.P. 6(b).

II. DISCUSSION

In order for Plaintiffs’ action to survive Defendant’s motion to dismiss, Plaintiffs must show “good cause” within the meaning of Rule 4(j) for their failure to serve the defendant within the time limitation imposed by that rule. The Third Circuit stringently applies the Rule, “consistently upholding dismissals of actions where there has not been meticulous effort to comply with its service provisions.” In re City of Philadelphia Litigation, 123 F.R.D. 515, 518 (E.D.Pa.1988), citing Napier v. Thirty or More Unidentified Federal Agents, 855 F.2d 1080, 1088 n. 4 (3d Cir.1988); Braxton v. United States, 817 F.2d 238 (3d Cir.1987); Stranahan Gear Co., Inc. v. NL Industries, Inc., 800 F.2d 53, 56 (3d Cir.1986). The “good cause” provision of Rule 4(j) protects “diligent plaintiffs who, though making every effort to comply with the dictates of the rule, nonetheless exceed the 120-day limit for service.” Green v. Humphrey Elevator and Truck Co., 816 F.2d 877 (3d Cir.1987). One commentator has remarked with regard to the 120-day time limit that, “[t]he lesson to the federal plaintiff’s lawyer is not to take any chances. Treat the 120 days with the respect reserved for a time bomb.” Siegel, Practice Commentary on Amendment of Federal Rule ) (Eff. Feb. 26, 1983) with Special Statute of Limitations Precautions, 96 F.R.D. 88, 109 (1983).

In this instance, Plaintiffs’ counsel treated the 120 days with the respect reserved for a child’s cap gun. His actions did not meet the stringent test of Rule 4(j). Plaintiffs’ “good cause” argument rests on the fact that the Defendant was an elderly, arthritic woman. Plaintiffs claim that Defendant’s age and condition rendered her incapable of always answering the door on her own. Defendant disputes this contention. Plaintiffs offer no explanation as to why they did not attempt service by either registered or first class mail as permitted by Fed.R.Civ.P. 4(c)(2)(C)(ii).

Plaintiffs’ counsel points to the fact that the attorney in the subrogation matter arising out of this same occurrence had to personally serve process on the Defendant. Rather than buttress his case, this fact serves to accentuate Plaintiffs’ counsel’s lack of diligence. Counsel offers no explanation as to why he made no similar attempts.

Plaintiffs relied on the Philadelphia Sheriff’s Department to effectuate service on the Defendant. As noted previously, Plaintiffs’ counsel learned slightly two weeks prior to the expiration of the 120-day deadline that the Sheriff had either misplaced or not received the summons and complaint. Notwithstanding the abysmal failure of this method of service, Plaintiffs decided to give the Sheriff one more chance and mailed off another copy of the summons and complaint. Apparently confident that the Sheriff would effectuate service immediately, a confidence unsupported by any facts of record, Plaintiffs’ counsel did not even telephone the Sheriff to ensure that the Sheriff had in fact received the summons and complaint until one month after the deadline expired.

After learning that the Sheriff had in fact received the summons and complaint, Plaintiffs’ counsel once again let the matter slip from his mind.

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Bluebook (online)
132 F.R.D. 391, 1990 U.S. Dist. LEXIS 13906, 1990 WL 157362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheets-v-schlear-njd-1990.