158 F.R.D. 66 | E.D. Pa. | 1994
MEMORANDUM AND ORDER
This civil matter has been brought before the Court by motion of the defendant, Albert Einstein Medical Center (AEMC), which seeks dismissal of the action pursuant to Federal Rules of Civil Procedure 12(b)(5) and 4(m). For the reasons that follow, the defendant’s motion to dismiss will be granted.
I. HISTORY OF THE CASE
The plaintiff in this action is Dr. Clement I. Momah, a former medical resident at AEMC. Dr. Momah initiated this action by filing a complaint against his former employer on March 7, 1994. On July 5, 1994, 120 days after the filing of the complaint, Dr. Momah’s attorney, Marshall Williams, at
II. DISCUSSION
A. Standards Applicable to this Rule 12(b)(5) Motion
Pursuant to Fed.R.Civ.P. 12(b)(5), a federal court is empowered to dismiss a case if service of process is insufficient. Rule 4(m) defines sufficiency of process with respect to the time in which service of process must be achieved, providing as follows:
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). Rule 4(m) went into effect on December 1, 1993, replacing the former Rule 4(j). Under the old rule, a federal district court was required to dismiss a case if service of process was effected after the expiration of the 120 day period, unless the plaintiff showed good cause for the delinquency.
B. The Timeliness of Service
There is little question that Dr. Momah failed to serve the summons and complaint upon AEMC within the time period specified in the rule. The complaint was filed on March 7, 1994. Pursuant to Rule 6(a),
C. Good Cause
While Rule 4 does not define good cause, the United States Court of Appeals for
Applying these considerations to the case at hand, the Court finds that there was no good cause for the failure to accomplish service of process within the time period allotted. The only excuse that Dr. Momah offers is that Mr. Williams attempted to contact the defendant’s counsel on the final day in which service of process could have been achieved, and that defendant’s counsel did not return the phone call. The circumstances suggest, however, that Mr. Williams’s inability to contact AEMC’s counsel was completely unrelated to his failure to serve process in accordance with Rule 4(m). First, the record indicates that Mr. Williams took no action to serve process upon AEMC until July 5, 1994, the final day on which the summons and complaint could properly have been served. Further, the defendant is not some disreputable, elusive entity, but is instead a hospital, conducting its operations in the broad light of day, a hospital where the plaintiff himself was once employed. This fact, combined with the fact that the hospital was served with the summons and complaint on the very day after Mr. Williams attempted to contact AEMC’s counsel, suggests that Mr. Williams could have easily complied with Rule 4(m) even if the defendant’s counsel failed to return his phone call. Under these circumstances, the Court concludes that the failure of service was caused by Mr. Williams’s lack of diligence, as well as his professional neglect. Accordingly, the plaintiff has failed to show good cause for his failure to serve process in accordance with Rule 4(m).
D. Disposition of the Motion
Since the plaintiff has failed to show good cause for his noneompliance with Rule 4(m), this Court must, in accordance with the rule, either dismiss the case without prejudice or select a new date by which service must be effected. Since the rule is new, there is little precedent to guide the exercise of a court’s discretion in these matters. The Advisory Committee’s note provides some assistance, noting that “[rjelief 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(m), Advisory Committee Note, 1993 Amendments. It is also clear that the rule’s drafters intended for the court to have some flexibility even when the plaintiff is unable to make a good cause showing. The rule and notes suggest, therefore, that a court should rule in favor of a noncomplying plaintiff only where some extenuating circumstance presents itself and compels the court, in the interests of justice, to allow the plaintiffs claim to go forward, even in the absence of good cause.
III. CONCLUSION
For the reasons stated above, this Court dismisses Dr. Momah’s complaint without prejudice.
. Former Rule 4(j) provided as follows:
Summons: Time Limit for Service. If 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.
Fed.R.Civ.P. 4(j) (1993) (amended and renumbered as Rule 4(m)).
. Rule 6(a) provides as follows:
In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included.
Fed.R.Civ.P. 6(a).
. The examples provided by the Advisory Committee are illustrative. Thus, since Rule 4(m) calls for only a complaint's dismissal without prejudice, to dismiss a plaintiff's claim where the statute of limitations would prevent the claim's refiling would forever bar plaintiff's claim, and would therefore seem to yield a harsher result than the one intended by the rule. Similarly, it