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considering the potential waste of judicial resources if the case were dismissed, only to be refiled within the statutory limitation period
Summary of this case from Grimball v. New Orleans CityOpinion
CIVIL ACTION NO. 03-2791 SECTION "R" (1)
May 6, 2004
ORDER AND REASONS
Before the Court is defendant Yazoo River Towing, Inc.'s motion to dismiss for lack of personal jurisdiction due to improper service of process. For the following reasons, the Court denies defendant's motion.
I. BACKGROUND
Plaintiff Joey Roulston filed this action against Yazoo River on October 3, 2003. In his complaint, plaintiff alleges claims under the Jones Act and general maritime law based on an accident aboard the M/V MELVIN L. KING that allegedly occurred on January 27, 2003. Defendant asserts that Roulston failed to serve the summons and complaint on it within 120 days after he filed his complaint, as required by Federal Rule of Civil Procedure 4(m). Defendant also asserts that plaintiff attempted to serve Yazoo River 140 days after he filed his complaint, but the service was ineffective because it was made on an employee of Yazoo River, not its registered agent for service of process, and the service failed to contain a summons. In his opposition to defendant's motion to dismiss, plaintiff requests that the Court exercise its discretion and extend the time to serve process. Plaintiff admits that he did not initially attempt service of process until 140 days after he filed his complaint. He contends that when he did attempt service, however, the process server confirmed with the Yazoo River employee that he was authorized to accept service and then served the employee with both the complaint and summons. In his supplemental opposition, plaintiff states that he served a copy of the complaint and summons on Yazoo River's registered agent for service on April 6, 2004.
II. DISCUSSION
Rule 4(m) establishes the time limit for service of process. It 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); see Wade v. Powell, 2003 WL 22326561, *1 (E.D.La.). If plaintiff does not make proper service within a 120-day period, the district court may either "dismiss the action without prejudice . . . or direct that service be effected within a specified time." FED. R. CIV. P. 4(m). The second part of the rule restricts the district court's ability to dismiss the case, making an extension of time mandatory when plaintiff shows good cause. See Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996). When service of process is challenged, the plaintiff carries the burden of proving good cause for the failure to effect timely service. See Glitz v. St. Tammany Parish Hospital, 125 F.R.D. 138 (E.D.La. 1998); Purvis v. Jenkins, 1998 WL 290212, *2 (E.D.La.).
Here, Roulston concedes that he did not effect service within 120 days of filing his complaint and offers no reasons for his failure. Plaintiff asserts that he corrected the defects in the service of Yazoo River on April 6, 2004, and the Court should exercise its discretion and extend the time to serve to render his April 6 service timely. Plaintiff notes that the statute of limitations on his Jones Act claims is three years. See Durgin v. Crescent Towing Salvage, Inc., 2002 WL 1789776, *3 (E.D.La.) (citing 46 U.S.C. § 763a; Clay v. Union Carbide Corp., 828 F.2d 1103, 1105 (5th Cir. 1987)). Because the accident allegedly occurred in January 2003, if the Court were to dismiss his complaint, he could promptly refile it and still be within the statute of limitations. Plaintiff argues that, as a result, dismissing his complaint for lack of timely service would merely waste the resources of the Court and the parties. Plaintiff also notes that the parties corresponded with each other about Roulston's maintenance and the potential for litigation long before plaintiff filed suit. Defendant has not identified any way in which it is materially prejudiced by an extension of the time for service. In light of these considerations, the Court extends the time for service through April 6, 2004 and denies defendant's motion to dismiss.
See Pl.'s Opp. to Def.'s Mot. to Dismiss, Ex. A Correspondence dated March 14, March 26 and May 5, 2003.
III. CONCLUSION
For the forgoing reasons, the Court denies defendant's motion to dismiss.