Vannoni v. TSO

120 F.R.D. 501, 1988 U.S. Dist. LEXIS 4591, 1988 WL 51592
CourtDistrict Court, E.D. Pennsylvania
DecidedMay 18, 1988
DocketCiv. A. No. 86-6722
StatusPublished
Cited by2 cases

This text of 120 F.R.D. 501 (Vannoni v. TSO) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vannoni v. TSO, 120 F.R.D. 501, 1988 U.S. Dist. LEXIS 4591, 1988 WL 51592 (E.D. Pa. 1988).

Opinion

MEMORANDUM AND ORDER

VAN ANTWERPEN, District Judge.

This matter comes before the court on the plaintiffs’ Motion To Vacate Dismissal.

The complaint in this action was filed on November 17, 1986. This case was then reassigned from the calendar of the Honorable Clifford Scott Green to that of the Honorable Franklin S. Van Antwerpen on January 29, 1988. On March 9, 1988, Judge Van Antwerpen’s Deputy Court Clerk wrote to the plaintiffs’ counsel regarding the failure to make service in the captioned case. This letter said, in pertinent part:

“In order to eliminate a delay in bringing this case to trial, service must be made by March 16, 1988, in accordance with Rule 4(j) of the Federal Rules of Civil Procedure. Proof of service must be filed with the Clerk’s Office within five days of service. If service is not made within the time set forth above, the court will dismiss the complaint without prejudice for lack of prosecution.”

Subsequent to receiving this letter, the plaintiffs took action. The plaintiffs say that their counsel, on March 15, 1988, mailed to all five defendants identical envelopes containing a copy of the complaint, a summons, two copies of a notice conforming substantially to Form 18-A and a self-addressed stamped envelope. A sixth envelope containing a letter was sent to the Clerk of Court’s office at the same time. The Domestic Return Receipts from defendants TSO, Cohen, and Markstein came back with a March 16, 1988 postmark. The Domestic Return Receipt from the Clerk’s office also came back marked March 16, [502]*5021988. The Domestic Return Receipts from defendants Scaliti and Colonial National came back marked March 17 and 18, 1988, respectively. The court received a “Return of Service” 1 containing photocopies of the Domestic Return Receipts on March 23, 1988. On that day, this court dismissed the captioned matter pursuant to Fed.R.Civ.P. 4(j).

Fed.R.Civ.P. 4(j) reads in pertinent part: “(j) Summons: Time Limit for Service. 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 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 upon the court’s own initiative with notice to such party or upon motion____”

The plaintiffs argue that the dismissal of their case should be vacated for two reasons: first, because they have complied with the directive in the letter of March 9, 1988 and second, because there is “good cause” why service was not made within the period prescribed by the rule. This good cause is said to be “[counsel's continuing ill health [which] has precluded effective efforts at service until the March 9 letter from the Court.” Memorandum in Support of Plaintiffs’ Motion to Vacate Dismissal, p. 2.

With regard to the plaintiffs’ first argument, we note that this case is squarely governed by Braxton v: United States, 817 F.2d 238 (3d Cir.1987). In Braxton, as in the instant case, a deputy court clerk, after time for service had expired, sent a letter to the plaintiff’s counsel, calling his attention to the lack of service and directing that service be made within fifteen days of the date of the letter. The plaintiff saw that service was made, but the defendant moved to dismiss the complaint on the ground that the plaintiff had not served the defendant within the 120 day period prescribed by Fed.R.Civ.P. 4(j). In response, the plaintiff asked the district court to consider a motion for enlargement of time to serve defendants under Fed.R.Civ.P. 6(b) nunc pro tunc.

The district court granted the defendant’s motion for dismissal, finding the plaintiff’s reliance upon the assurances of a third party, who had agreed to serve the complaint, insufficient to constitute “good cause” within the meaning of Fed.R.Civ.P. 4(j). The district court, although treating the plaintiff’s motion for an extension of time as one filed under Fed.R.Civ.P. 6(b)(2), denied it because the plaintiff had not shown that the failure to effect service within 120 days had been the result of “excusable neglect.”

The Third Circuit affirmed the order of the district court. “Legislative history [of Fed.R.Civ.P. 4(j)] confirms the mandatory nature of the dismissal sanction, emphasized in the rule by use of the word ‘shall’.” Id. at 240. The court explained the purpose of the notice requirement under Fed. R.Civ.P. 4(j) as follows:

“The requirement of notice provides the delinquent party with an opportunity to demonstrate good cause through a motion under Rule 6(b)(2). The rule thus offers the serving party a means to avoid an unexpected and perhaps unjustified dismissal. Notice, however, does not operate as an automatic extension, and nothing in the rule or its interpretations construes it in this way. In addition, notice does not supplant the necessity of demonstrating good cause for failure to comply with the rule.”

Id. at 241-242.

The plaintiff’s argument that the deputy court clerk’s letter operated as an automatic extension failed to convince the court:

“We cannot accept the plaintiff’s argument that the district court’s letter of March 31, 1985 constituted an automatic extension. As noted earlier, the rule pro[503]*503vides for an extension of time only for good cause, and in this case no motion had been presented to the court before the letter was written. Consequently, no basis for an extension existed at that time, and the district judge did not purport to act contrary to the provisions of the rule.
Nor can plaintiff’s counsel seriously contend that he was misled to his prejudice by the wording of the letter. The district judge generously treated the plaintiff’s response to the defendant’s motion to dismiss as a motion under Rule 6, thus giving counsel the opportunity to demonstrate good cause. Nevertheless, plaintiff was unable to make the requisite showing.”

Id. at 242.

So, in the instant case, we must refuse to depart from the provisions of Fed.R.Civ.P. 4(j).2 We do so even though we find it regrettable that the plaintiffs will necessarily find themselves out of court because of the one-year statute of limitations imposed by 15 U.S.C.A.

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Cite This Page — Counsel Stack

Bluebook (online)
120 F.R.D. 501, 1988 U.S. Dist. LEXIS 4591, 1988 WL 51592, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vannoni-v-tso-paed-1988.