Vergis v. Grand Victoria Casino & Resort

199 F.R.D. 216, 2000 A.M.C. 2663, 2000 U.S. Dist. LEXIS 20686, 2000 WL 33179601
CourtDistrict Court, S.D. Ohio
DecidedJune 27, 2000
DocketNo. C-1-99-1035
StatusPublished
Cited by19 cases

This text of 199 F.R.D. 216 (Vergis v. Grand Victoria Casino & Resort) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vergis v. Grand Victoria Casino & Resort, 199 F.R.D. 216, 2000 A.M.C. 2663, 2000 U.S. Dist. LEXIS 20686, 2000 WL 33179601 (S.D. Ohio 2000).

Opinion

ORDER

BECKWITH, District Judge.

On December 17, 1999, Plaintiff Joseph Vergis filed a complaint against Grand Victoria Casino & Resort (“Grand Victoria”) under the Jones Act, 46 U.S.C. § 446, alleging that he was injured due to negligence on the part of Grand Victoria while employed as a dealer on one of its riverboat casinos. The complaint alleges that on December 18, 1996, Plaintiff slipped and fell on icy stairs that Grand Victoria negligently failed to clear. On April 28, 2000, Grand Victoria filed a motion to dismiss the complaint under Rule 4(m) of the Federal Rules of Civil Procedure on the grounds that Plaintiff failed to effect service of the summons and complaint upon it within 120 days of the filing of the complaint as required. Doc. No. 3.

In response, Plaintiff does not claim that he effected service within the time allowed by the Rule, nor does he argue that there is good cause for his failure to effect timely service. Nonetheless, Plaintiff contends that the Advisory Committee Notes to the 1993 Amendments to Rule 4 show that the district court has discretion to grant an extension of time in which to effect service even in the absence of good cause, particularly where, as in this ease, the re-filed action would be barred by the statute of limitations.1 2In any event, Plaintiff argues that Grand Victoria [217]*217waived service of process when his attorney provided Grand Victoria’s attorney a copy of the complaint at a settlement conference in an unrelated case.

Rule 4(m) of the Federal Rules of Civil Procedure provides:

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.

Fed.R.Civ.P. 4(m). In this case it is undisputed that Plaintiff did not effect service within 120 days of filing the complaint, nor is there good cause for his failure to do so. In such a case, the Sixth Circuit has taken the position that dismissal of the complaint is required. See Moncrief v. Stone, 961 F.2d 595, 596 (6th Cir.1992) (“[W]e have held that Rule 4(j) [the predecessor of current Rule 4(m) ] renders dismissal after 120 days mandatory rather than discretionary in the absence of good cause.”) (internal quotes omitted). Furthermore, there is a long line of unpublished decisions issued by the Sixth Circuit affirming dismissals of complaints for the plaintiffs failure to demonstrate good cause for not complying with Rule 4(m). Williams v. Smith, 191 F.3d 454, 1999 WL 777654, at *2 (6th Cir.1999); Rose v. G.UB.MK Constructors, 187 F.3d 637, 1999 WL 507025, at *2 (6th Cir.1999); Thurman v. GTE, 142 F.3d 436, 1998 WL 69085, at *1 (6th Cir.1998); Moore v. Nesbitt, 107 F.3d 12, 1997 WL 52917, at *1 (6th Cir.1997); Miller v. Runyon, 56 F.3d 64, 1995 WL 325692, at *1 (6th Cir.1995);. Nonetheless, Plaintiff argues that the Advisory Committee Notes authorize the district court to grant an extension of time in which to effect service even absent good cause.

The Advisory Committee’s Note regarding subsection (m) provides:

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. Such relief formerly was afforded in some cases, partly in reliance on Rule 6(b). Relief may be justified, for example, if the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or conceals a defect in attempted service.

Fed.R.Civ.P. 4, Advisory Committee Notes to 1993 Amendments. A number of the Courts of Appeals have relied on this Advisory Committee Note in adopting the position that the Rule gives the district court discretion to grant an extension even in the absence of-good cause. See Panaras v. Liquid Carbonic Ind. Corp., 94 F.3d 338, 340 (7th Cir.1996); Adams v. AlliedSignal Gen. Aviation Avionics, 74 F.3d 882, 886 (8th Cir.1996); Espinoza v. United States, 52 F.3d 838, 841 (10th Cir.1995); Petrucelli v. Bohringer & Rat-zinger GMBH, 46 F.3d 1298, 1306 (3rd Cir. 1995). In Mendez v. Elliot, 45 F.3d 75 (4th Cir.1995), the Fourth Circuit rejected the proposition that the amended Rule 4 gives the district court discretion to grant an extension even absent good cause. Id. at 78-79. In reaching that decision, however, the Court did not address whether and how the Advisory Committee Note affected its interpretation of the Rule.

While, as indicated, the Sixth Circuit appears to have adopted a rigid application of Rule 4(m), it must be noted that the principal case, Moncrief, was decided in 1992, before adoption of the 1993 Amendments and the promulgation of the new Advisory Committee Note. The Court also notes that Sixth Circuit decisions issued subsequent to the 1993 amendments have not specifically addressed whether the Advisory Committee Note expands the Court’s ability to grant extensions to effect service. On the other hand, the Court has not specifically rejected that proposition either. In fact, the Sixth Circuit appears to have completely ignored this particular Advisory Committee Note. The United States Supreme Court, however, has endorsed the idea, albeit in dicta, that the new Rule allows a district court to grant an extension of time even absent good cause. See [218]*218Henderson v. United States, 517 U.S. 654, 662-63, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996) (“Most recently, In 1993 amendments to the Rules, courts have been accorded discretion to enlarge the 120-day period even if there is no good cause shown.”). The Court of Appeals of this Circuit has consistently recognized the persuasive value of Supreme Court dicta. See e.g. Wright v. Morris, 111 F.3d 414

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199 F.R.D. 216, 2000 A.M.C. 2663, 2000 U.S. Dist. LEXIS 20686, 2000 WL 33179601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vergis-v-grand-victoria-casino-resort-ohsd-2000.