Opinion
No. 99-C-390
February 23, 2000
DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. # 21) AND DISMISSING CASE
Currently pending is defendants' motion for summary judgment. For the reasons set forth below, the motion will be granted and the case dismissed.
FACTUAL BACKGROUND
This product liability action, which was filed on April 19, 1999, arises out of injuries sustained by Derrick Rodgers on April 22, 1996. (Compl., ¶ 15) The court entered an order on August 19, 1999, dismissing the case for lack of prosecution effective September 9, 1999, unless the plaintiffs were able to show cause in writing prior to said date. (Doc. #4) Hearing nothing from the plaintiffs, judgment of dismissal was entered on September 10, 1999. (Doc. # 5)
On September 29, 1999, plaintiff Derrick Rodgers filed a petition for reinstatement and a motion to extend the time limits for service of process on the defendants. (Doc. # 8) Rodgers did not explain his failure to comply with the court's September 9, 1999, deadline. Nevertheless, the court conducted a hearing on plaintiff's motion and granted the parties' request to file supplemental briefs. (Doc. # 15) Plaintiff Derrick Rodgers again ignored the court's deadline and filed his supplemental brief three days late. (Doc. # 19)
The court reinstated the complaint December 13, 1999, after finding that the attorney for Heritage Mutual did not have notice of the court's August 19, 1999, order, even though he had never entered a notice of appearance, never filed a certificate of interest, and not been identified on the court docket. (Doc. # 20) Defendants promptly filed a motion for summary judgment, and a supplemental brief in support of their motion for summary judgment. (Doc. # 21) Plaintiffs did not file a brief in opposition to the motion for summary judgment, or any response to the defendants' proposed findings of fact. However, without seeking an extension of time to file a response, plaintiff Heritage Mutual sent a letter to the court on February 4, 2000, stating that Heritage Mutual would simply be relying on its brief filed with the court on November 19, 1999. (Doc. # 26) On the other hand, Local Rule 6.01(b) provides that the failure to file a timely brief shall be deemed a waiver of the right to submit it.
Because the plaintiffs did not respond to the proposed findings of fact, the court concludes that there are no genuine material issues as to the defendants' proposed findings. Local Rule 6.05(d). Consequently, in analyzing the issue of service under the Federal Rules of Civil Procedure and Wis. Stat. § 801.02, the court finds that the defendants were served over ninety days after the plaintiffs filed their complaint. (Aff. Ramthun 9/29/99, ¶ 10; Aff. Ramthun 10/11/99, ¶ 2) The summons and complaint were not sent to APS International, Ltd. for translation and eventual service in accordance with the Hague Convention until June 24, 1999. (Aff. Ramthun 9/29/99, ¶¶ 2, 4) This delay extended the time required to serve the defendants by 66 days. Further, it only took 78 days from the day that plaintiff Derrick Rodgers' counsel forwarded the paperwork to APS until the last defendant was served under the Hague Convention. (Aff. Ramthun 9/29/99, ¶¶ 4, 10)
CONCLUSIONS OF LAW
Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). There are no genuine issues of material fact. The sole issue for this court is whether defendants are entitled to judgment as a matter of law based upon plaintiffs' failure to timely serve defendants in accordance with Wis. Stat. § § 801.02 and 893.02.
Although defendants rely on the Wisconsin statutes, their argument raises questions regarding the interplay between the Federal Rules of Civil Procedure, the Local Rules of this district, and the Wisconsin statutes. Rule 4(m) of the Federal Rules of Civil Procedure authorizes the court to dismiss the action without prejudice if service is not made within 120 days after the filing of the complaint, but the time limit does not apply to service in a foreign country. Fed.R.Civ.P. 4(m). Dismissal is appropriate under this court's local rule upon twenty days notice in all cases where the plaintiff has not effected service of process on the defendant within 120 days from the filing of the complaint. Local Rule 10.01 (E.D. Wis.). Finally, the Wisconsin statutes provide that for plaintiffs to survive the three-year statute of limitations, they must make proper service within ninety days. See Wis. Stats. §§ 801.02(1), 893.02.
In deciding what rule governs, two recent cases are particularly instructive. In Conservatorship of Prom v. Sumitomo Rubber, 224 Wis.2d 743, 748 (Ct.App. Feb. 10, 1999), rev, denied, 599 N.W.2d 409 (May 25, 1999), the Ozaukee County Circuit court denied the plaintiff's motion to extend time for service of an amended summons and complaint and dismissed the complaint. In doing so, it found that the Japanese defendant was not served within the mandated sixty-day period for service pursuant to § 801.02, Stats. On appeal, the plaintiff argued that the trial court erred because service was timely performed under the Hague Convention, which as a federal treaty preempts the state's statutory provisions for service of process. Id. Plaintiff-appellant also argued that § 801.02 was unconstitutional as applied. Id. The Wisconsin Court of Appeals rejected both arguments. Significantly, the Court of Appeals held that Wisconsin's time period for service is not preempted by the Hague Convention because there is no conflict between § 801.02 and Hague Convention. Id., 224 Wis.2d at 755.
The Seventh Circuit Court of Appeals was faced with a similar issue inO'Rourke Bros., Inc. v. Nesbitt Burns, Inc., 2000 WL 36934 (7th Cir. Jan. 19, 2000), where a district court dismissed the case with prejudice for failure to prosecute after the plaintiffs failed to serve the foreign defendants within 120 days. O'Rourke, 2000 WL at * * 1-2. Plaintiffs failed to show cause in writing why their case should not be dismissed, never objected to the magistrate judge's recommendation regarding dismissal, and did not appeal. Id. The district court denied a subsequent Rule 60 motion claiming excusable neglect. Id. The Seventh Circuit declined to rule on what should be done in the event of dilatoriness in serving defendants of a foreign country, but held that the court does not lack the power to dismiss a case with prejudice for lack of prosecution in a case like this. Id., 2000 WL at 6.
Plaintiffs missed three court deadlines, and have never offered an explanation for their failure to comply. Plaintiffs' most recent failure to respond to defendants' motion for summary judgment underscores the court's initial finding that plaintiffs have failed to prosecute this matter. Plaintiffs' disregard of the court's schedule combined with their dereliction in not obtaining service in a timely manner, supports dismissal. Thus, consistent with O'Rourke Bros. Inc. and Conservatorship of Prom,
IT IS ORDERED that defendants' motion for summary judgment is granted.