Zachery v. Thigpen, 895 F. Supp. 1472 (M.D. Ala. 1995)
June 21, 1995
Morris L. THIGPEN, etc., et al., Defendants.
United States District Court, M.D. Alabama, Northern Division.
*1473 Marcus W. Reid, Anniston, AL, for plaintiff.
Horace N. Lynn, Andrew W. Reed, Montgomery, AL, for Morris L. Thigpen, Davis & Dept.
Randal H. Sellers, Elizabeth S. Webb, Birmingham, AL, for defendants.
MEMORANDUM OPINION AND ORDER
DE MENT, District Judge.
Before the court is defendant Questcare, Inc.'s ("Questcare") motion to dismiss filed May 31, 1995, to which the plaintiff responded on June 19, 1995. Questcare seeks dismissal of the complaint without prejudice for failure to effect service of process within 120 days of filing the complaint. See Fed. R.Civ.P. 4(m). After careful consideration of the arguments of counsel, the applicable case law and the record as a whole, the court finds that Questcare's motion is due to be granted.
FINDINGS OF FACT
The plaintiff's decedent, Houston Zachery, Jr., died on June 1, 1992 from hypertensive intracerebral hemorrhage while incarcerated at Bullock County Correctional Facility. On the day the statute of limitations was due to expire (June 1, 1994), the plaintiff commenced this action in the Circuit Court of Montgomery County, Alabama. The named defendants are the Alabama Department of Corrections, the Warden of Bullock County Correctional Facility, the Prison Commissioner for the State of Alabama and Questcare.
Questcare has a contract with the State of Alabama to provide medical services to the state's prison population. The plaintiff alleges that Questcare's alleged failure to treat the decedent's health condition violates the Eighth Amendment's proscription against cruel and unusual punishment, as enforced by 42 U.S.C. § 1983, and also constitutes common-law negligence and wanton misconduct. Pl.'s Compl. at ¶¶ 16-19. The plaintiff further avers that Questcare is liable under the Alabama Medical Liability Act of 1987, § 6-5-548, for failing to exercise such reasonable care and diligence as other health care providers in the same general line of practice ordinarily exercise in similar situations. Id. at ¶ 20-21.
Upon filing the complaint, plaintiff's counsel contacted the office of the Secretary of State and obtained the following address for Questcare's registered agent: George B. Salem, 2100 S. Bridge Parkway, Suite 395, Birmingham, Alabama 35209. Pl.'s Resp. to *1474 Questcare's Mot. Dismiss, Marcus Reid's Aff. attached thereto. Attempts to secure service at the address were unsuccessful with returns marked "not found." Id. Counsel again contacted the office of the Secretary of State and was informed that the latter name and address was the one on file.
On June 30, 1994, the plaintiff mailed a motion and affidavit to the circuit court requesting service by publication on Questcare. "Shortly" thereafter, the plaintiff spoke with a staff attorney at Questcare who represented that an answer would be filed soon. Then on July 6, 1994, defendant Alabama Department of Corrections removed this action to the United States District Court for the Middle District of Alabama, Northern Division.
According to plaintiff's counsel, he discovered only "recently" that the clerk of the circuit court never directed that service of notice be made by publication. Id. Nonetheless, the plaintiff states that he "believed that the publication had run." Id. After realizing his failure to serve Questcare, plaintiff's counsel made "additional efforts to locate and serve" this defendant. Id. Namely, plaintiff's counsel obtained the name of Anne Goldstein from the certificate of service on the Alabama Department of Corrections' motion to dismiss filed July 11, 1994. He then contacted Anne Goldstein who told him that the address for Questcare's registered agent on file at the office of the Secretary of State was incorrect but that the registered agent could be served in care of Starnes & Atchison's office.
Then on April 24, 1995, the plaintiff sent via certified mail a copy of the summons and complaint to Questcare's registered agent at the address of Starnes & Atchison. The return receipt indicates that Questcare received a copy of the summons and complaint on May 4, 1995.
Questcare timely filed an answer on May 15, 1995 and on May 31, 1995 amended its answer within the time prescribed by federal law. In the forty-fourth affirmative defense, Questcare pleads untimely service of process under Rule 4(m) of the Federal Rules of Civil Procedure. Questcare also filed a motion to dismiss for failure to timely serve, which now is before the court.
Rule 4(m) of the Federal Rules of Civil Procedure governs the time-frame within which service must be completed and provides, in pertinent part, that:
[i]f 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). After expiration of the 120-day time limit, Rule 4(m) affords the plaintiff one, and only one, safety hatch to escape dismissal of the complaint and that is through a showing of "good cause." Schnabel v. Wells, 922 F.2d 726, 728 (11th Cir. 1991) (holding that "dismissal is mandatory if service is not perfected within 120 days of filing the complaint unless good cause is shown"); see also In re Cooper, 971 F.2d 640, 641 (11th Cir.1992).
While the Federal Rules of Civil Procedure do not define "good cause," case law has delineated the parameters. For example, courts have found that factors outside a plaintiff's control, such as sudden illness, natural catastrophe or evasion of service of process, will satisfy the "good cause" requirement. See Floyd v. United States, 900 F.2d 1045, 1047 (7th Cir.1990) (citation omitted); see also Varela v. Sanchez Velez, 814 F.2d 821, 823-824 (1st Cir.1987). On the other hand, "lack of prejudice," by itself, cannot *1475 "serve as an adequate foundation for a `good cause' determination."Floyd, 900 F.2d at 1048 (citing Quann v. Whitegate-Edgewater, 112 F.R.D. 649, 660 (D.Md.1986)).
A putative defendants' actual notice of a lawsuit also will not preclude dismissal. As stated by the Court of Appeals for the Fifth Circuit,
[i]t would appear to be generally irrelevant that the defendant not served within the 120-day period later finds out about the suit or is in fact later served, so long as there was not good cause for the failure to serve within the 120 days.... If the defendant's mere becoming aware of the suit after the 120-day period precluded dismissal, then the "upon motion" provision of Rule 4(j) would be meaningless.
Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1305-06 (5th Cir.1985).
Here, it is undisputed that the plaintiff failed to serve Questcare within the 120-day period. Hence, the court must dismiss the complaint without prejudice unless the plaintiff satisfies her burden of establishing "good cause." See Sanders v. Fluor Daniel, Inc., 151 F.R.D. 138, 139 (M.D.Fla.1993), aff'd 36 F.3d 93 (11th Cir.1994) (citing Systems Signs Supplies v. United States Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990)). Whether a plaintiff has shown "good cause" involves a discretionary analysis by the district court, subject to appellate review under the abuse-of-discretion standard. See Geiger v. Allen, 850 F.2d 330, 333 (7th Cir. 1988) (citations omitted).
The plaintiff argues that she made "reasonable efforts" to serve Questcare within the prescribed 120 days, thus, satisfying the "good cause" requirement. In the alternative, the plaintiff asserts that under Rule 4(m), a showing of "good cause" is not required in every instance and cites Ditkof v. Owens-Illinois, Inc., 114 F.R.D. 104 (E.D.Mich.1987). The court first will address the plaintiff's fallback argument.
The court is aware that the advisory committee notes following Rule 4(m) refer to Ditkof for the proposition that even if the plaintiff fails to show "good cause," "[r]elief may be justified ... if the applicable statute of limitations would bar the refiled action."See Notes of Advisory Committee on Rules, 1993 Amendment. The court, however, finds that the circumstances here are distinguishable from those in Ditkof. In Ditkof, the personal representative filed an action in state court asserting that the decedent's death was caused by exposure to asbestos manufactured by the various corporation-defendants. Thereafter, the defendants timely removed the case to federal court.
After the statute of limitations had run, one of the defendants (Nicolet, Inc.) moved to dismiss the complaint for insufficiency of service of process. The court denied the defendant's motion and found that dismissal would "be unfair because Nicolet's removal, and its inclusion on nearly every subsequent proof of service, understandably lulled plaintiff into believing that service had been accomplished." Id. at 105.
Here, the court finds that there is no evidence that Questcare attempted to induce the plaintiff into believing that service had been effected. First, unlike Ditkof, Questcare did not join in the petition of removal and, in fact, was not required to do so by the removal statutes. See Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254, 1262-63 (5th Cir.1988) (stating that under 28 U.S.C. § 1446 only served defendants must consent to removal).
Second, the plaintiff impliedly suggests that the representation by Questcare's inhouse *1476 counsel that an answer soon would be filed was a ploy by Questcare to lull the plaintiff into believing that service of process would be waived. The court does not agree. As long as the answer is the first responsive pleading, as here, an answer is one means by which a defendant may preserve the defense of insufficiency of service of process. Fed. R.Civ.P. 12(b), (h). In other words, filing an answer does not relieve a plaintiff from executing proper service of process upon a defendant.
The court notes that its findings may well have been different had Questcare's in-house counsel explicitly represented that service of process would be waived. Plaintiff's counsel, however, states that he merely "believed" that in representing that an answer was forthcoming, Questcare's in-house counsel would waive service of process. While the court understands how plaintiff's counsel inferred that the words spoken meant that Questcare would waive service of process, the Federal Rules of Civil Procedure dictate a contrary conclusion.
Third and most significantly, the defendant's deceptiveness in Ditkof was the direct cause of the plaintiff's untimely service and satisfied the "good cause" standard. The ancillary fact that the statute of limitations had expired simply supplied an additional reason for not dismissing the defendant and added to the injustice that would ensue if the court were to grant the defendant's motion. As stated by the Court of Appeals for the Fifth Circuit, the "`good cause' exception relates only to `why service was not made within the [120-day] period.' It does not relate to other reasons why the action should not be dismissed." Winters, 776 F.2d at 1305 (emphasis and brackets in original). See also Floyd, 900 F.2d at 1048 (holding that the fact that dismissal of an action without prejudice will effectively bar a plaintiff's claim if the statute of limitations has run does not, in and of itself, "serve to establish good cause and otherwise prevent dismissal").
Contrary to Ditkof, the court finds that the plaintiff's actions, not Questcare's, resulted in and were the sole cause of the ultimate failure to effect timely service of process, discussed infra. The court acknowledges that the plaintiff's efforts to serve Questcare's registered agent at the beginning of the lawsuit were whole-hearted. The plaintiff, however, failed to diligently pursue and complete her obligation to serve process. See Fed. R.Civ.P. 4(c) (1) (charging a plaintiff with the responsibility "for service of a summons and complaint within the time allowed under subdivision (m)"). Accordingly and for the following three reasons, the court finds that the plaintiff failed to use reasonable efforts to perfect service on Questcare and has not established "good cause."
First, the court finds that counsel for plaintiff's belief that service by publication had run is no more than an unsubstantiated assumption that falls short of the "good cause" requirement. There was an inordinate delay between mailing the motion for service by publication on June 30, 1994 and the plaintiff's subsequent efforts on April 24, 1995 to serve Questcare at the address of Starnes & Atchison. Specifically, Questcare's failure to file an answer should have prompted the plaintiff to either move for a default judgment or determine with certainty whether service by publication had been effected. As to the latter, plaintiff's counsel easily could have verified whether service of notice had been published by calling the clerk of the circuit court to see if the motion had been granted, by checking the local newspaper(s) in Montgomery County or by confirming that he or his client had in fact paid a bill for service by publication. There was more than ample time between filing the complaint and the expiration of the 120 days to discover whether notice by publication had been achieved.
Second, the court finds that the plaintiff's "half-hearted" efforts to serve Questcare constitute attorney neglect and preclude a finding *1477 of "good cause." Geiger, 850 F.2d at 333; see also Wei v. Hawaii, 763 F.2d 370, 371 (9th Cir.1985). In Geiger, the Court of Appeals for the Seventh Circuit affirmed the district court's dismissal of the complaint without prejudice for failure to serve a defendant within 120 days of filing the complaint. There, between the filing of the complaint on June 10, 1986 and dismissal a year later, plaintiff's counsel's scant efforts to locate and serve one of the defendants were as follows: The plaintiff contacted the Secretary of State's office to see if the defendant, who is blind, had a restricted driver's license. The plaintiff also asked the defendant's former employer for the defendant's current address, which finally was provided after the fourth request. Thereafter and 143 days after filing the complaint, the plaintiff mailed the defendant a copy of the summons and complaint.
The Seventh Circuit held that even though the statute of limitations would bar a re-filed lawsuit, the plaintiff could not establish "good cause" where efforts to serve the defendant were "half-hearted":
The Chicago telephone directory contained only seven listings for Don or Donald Allen, one of whom was the defendant. Yet [plaintiff's] counsel did not make even one phone call in an effort to locate Allen. Other than a fruitless inquiry to the Secretary of State, [plaintiff's] counsel's only effort to locate Allen was to ask [his former employer] for his address. [Plaintiff] cannot rely on the fact that [the former employer] was dilatory in supplying Allen's address. [Plaintiff] was obligated to pursue alternative methods of finding and serving Allen. Other than making a few telephone calls, the most obvious solution would have been to ask Allen's former co-workers ... if they knew Allen's current address.
Id. (internal citations omitted) (brackets supplied).
As in Geiger, the court is unpersuaded by the plaintiff's argument that Questcare "was ... difficult to serve and its service address and telephone number were not easily accessible...." See Pl.'s Resp. to Questcare's Mot. Dismiss at ¶ 2. In fact, Questcare's correct address and telephone number are listed in the white pages of the March 1994-1995 "Greater Birmingham" telephone directory, as well as in the October 1994-95 "Greater Birmingham" yellow pages, of which the court takes judicial notice. See Ct.'s Ex. 1. The plaintiff also could have propounded an interrogatory to defendant Alabama Department of Corrections requesting Questcare's address. See Geiger, 850 F.2d at 333 n. 5. Furthermore, counsel for plaintiff's representation that he spoke with Questcare's in-house counsel shortly after commencing this lawsuit indicates to the court that the plaintiff already may have known Questcare's telephone number.
The record further indicates that the plaintiff had access to the address of the firm representing Questcare as early as July 11, 1994, the date the Alabama Department of Corrections filed its motion to dismiss and included Questcare on the certificate of service. Counsel for plaintiff's failure to discover this address on the certificate of service until sometime in the Spring of 1995 further bolsters the court's findings.
Third, the court finds that the plaintiff had an obligation to pursue other possible means of serving Questcare yet failed to do so. Rule 4(h) of the Federal Rules of Civil Procedure authorizes service on a "managing or general agent" of a corporation as well as on various officers. Moreover, the plaintiff could have looked to the state's service-of-process rules and served Questcare "by certified mail at any of its usual places of business." Ala.R.Civ.P. 4(c) (6); Fed.R.Civ.P. 4(e) (1) (authorizing service in the manner prescribed by Alabama law).
In sum, the court finds that the plaintiff has not provided sufficient justification for the long delay in service so as to fall within the "good cause" exception under Rule 4(m) of the Federal Rules of Civil Procedure. There was an extraordinarily long delay between filing the complaint on June 1, 1994 and service almost a year later, and the plaintiff's efforts to remedy the service problem during this time were half-hearted and *1478 neglectful.
The court realizes that dismissal of the complaint has severe consequences, as the plaintiff will be forever barred from pursuing the causes of action alleged in the complaint against Questcare. Plaintiff's counsel, however, easily could have avoided the repercussions and cannot now prevent dismissal in the absence of "good cause": "`The lesson to the federal plaintiff's lawyer is not to take any chances. Treat the 120 days with the respect reserved for a time bomb.'" Cox v. Sandia Corp., 941 F.2d 1124, 1126 (10th Cir. 1991) (citation omitted).
For the foregoing reasons, it is CONSIDERED and ORDERED that Questcare, Inc.'s motion to dismiss for failure to timely serve be and the same is hereby GRANTED without prejudice and that Questcare, Inc. be and the same is hereby DISMISSED from the complaint as a party-defendant.
 In an affidavit attached to the June 19, 1995 opposition to Questcare's motion to dismiss, plaintiff's counsel states that he obtained this information from a telephone conversation with a "female" attorney at Starnes & Atchison, the firm representing Questcare in this action. In a subsequent affidavit filed June 30, 1995, plaintiff's counsel amended his statement, asserting that the attorney with whom he spoke actually was Anne Goldstein (in-house counsel with Questcare) and that he "simply misunderstood her references to Starnes & Atchison."
 In an order dated June 21, 1995, the court directed Questcare to show how it had been prejudiced by the plaintiff's failure to effect timely service. After careful consideration of Questcare's response to the court's inquiry, the court agrees with Questcare that in this case, lack of prejudice is not a factor for consideration.
 Although this case was decided prior to the 1993 amendments, the revised Rule 4(m) "retains much of the language of the [former] subdivision (j)." See Notes of Advisory Committee on Rules, 1993 Amendment. Given the similarity of the rules, the court finds that the case law applying and interpreting the former rule is equally applicable to the amended Rule 4(m).
 The parties agree that dismissal without prejudice will operate as a permanent bar as the applicable statute of limitations has expired.
 Incidentally, the court notes that an attorney's unfamiliarity with the Federal Rules of Civil Procedure, if that is the case here, does not warrant a finding of good cause. See Barco Arroyo v. Federal Emergency Management Agency, 113 F.R.D. 46, 49 (D. Puerto Rico 1986) (finding that counsel's failure to study the federal service of process rules will not suffice to establish good cause).
 In light of the foregoing, the court need not and declines to address Questcare's failure-to-prosecute argument.
 The court expresses no opinion as to whether the plaintiff can maintain a cause of action against Questcare as a third-party beneficiary to the contract between Questcare and the Alabama Department of Corrections, thus avoiding the bar which the statute of limitations creates to the refiling of the causes of action presently alleged in the complaint.