Pullins v. Bi Lo Holdings, LLC et al, No. 2:2015cv00162 - Document 27 (S.D. Ga. 2016)
Court Description: ORDER granting Defendants' 18 Motion to Dismiss. Signed by Chief Judge Lisa G. Wood on 12/12/2016. (ca)
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Pullins v. Bi Lo Holdings, LLC et al Doc. 27 Ifti ?l9titteb States! Bisitntt Court for t|ie ^otttfiem Biotrict of(deorgio Pmttotnuk Btbtoton BRIDGETT PULLINS, Plaintiff, CV 215-162 V. BI-LO HOLDINGS, LLC; DELHAIZE AMERICA, LLC; SAMSON MERGER SUB, LLC; SOUTHEASTERN GROCERS, LLC d/b/a HARVEY'S SUPERMARKET; and RETAINED SUBSIDIARY ONE,LLC Defendant. ORDER This Merger matter Sub, comes LLC before Court and {''Samson") the on Retained Defendants Samson Subsidiary One's ("Retained" collectively "Defendants") Motion to Dismiss (Dkt. No. 18). decision. The motion is fully briefed and is now ripe for For the reasons stated below, the motion is GRANTED. FACTUAL BACKGROUND This case arises from personal injuries allegedly sustained by Plaintiff Bridgett Pullins ("Plaintiff") when she fell at Harvey's Supermarket due to a "loud noise" caused by an employee or agent of the Defendants. Dkt. No. 1 H 6. She claims that Defendants failed to keep their premises safe and should have posted warning signs about the loud noise. fllO. Plaintiff Dockets.Justia.com now seeks to recover damages for her medical expenses as well as her pain and November 12, suffering. 2015. Plaintiff filed See generally id. her Complaint on On December 23, 2015, Plaintiff amended her Complaint to add Retained as a Defendant. On March 24, 2016, alleging that neither served. Dkt. No. Defendants Complaint. No. the 24. 18. Samson filed nor Samson the Retained has yet to motion had at been answer issue, properly Plaintiff's Retained filed its Answer on April 27, 2016. Plaintiff was notified ^^sole-survivors-in-interest" that Samson and Retained to Harvey's Supermarket Dkt. were on December 14, 2015 via an email with an attached Memorandum of Mergers. Dkt. No. 20 p. 1. All other Defendants in this matter have either been properly served or have waived service. DISCUSSION The should be Court considers whether or not Plaintiff's Complaint dismissed for failure to properly serve Defendants. Plaintiff bears the responsibility of serving the Defendant with copies of the complaint and a summons in accordance with Federal Rule of Civil Procedure 4 (m) {''Rule 4(m)"). Lepone-Dempsey v. Carroll Cty. Comm'rs., 476 F.3d 1277, 1280-81 (11th Cir. 2007). Rule 4(m) provides, in part, as follows: If a defendant is not served within 90 days after the complaint is filed, the court—on motion or after notice to the plaintiff—must dismiss without prejudice against that defendant or service be made within a specified time. on its own the action order that But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. Fed. R. Civ. P. 4(m).^ Rule 4(m) thus requires that a plaintiff properly affect service on the defendant within 90 days after filing a complaint. Lepone-Dempsey, 476 F.3d at 1281 (citing Fed. R. Civ. P. 4(m)). Where a plaintiff has filed a complaint but has not yet served the same upon the defendant, the plaintiff's decision to amend the complaint does not extend the timeframe in which to affect service under the rule. See Leonard v. Stuart-James Co., 742 F. Supp. 653, 662 (N.D. Ga. 1990). must still be served original complaint. within 90 days The amended complaint of the filing of the See id. at 660, 662 (seirvice of the amended complaint 157 days after the original complaint's filing and thus was insufficient). In those circumstances, the amended complaint must be served in the same manner as an original complaint, rather than in the manner applicable to siibsequent pleadings. In See Leonard, 742 F. Supp. at 662. this case, it is undisputed that Plaintiff did not properly serve Defendants within the 90-day service period under Rule 4(m). Dkt. No. 20 p. 1. Plaintiff concedes this fact and instead seeks to extend the time of service as to Defendants. ^ A recent amendment to this rule shortened the 120-day period for service to only 90 days. note. See Fed. R. Civ. P. 4 advisory committee's Rule served failure 4(m) affords outside to the serve two 90-day ^'safety window Defendants hatches" and within for therefore that necessarily fatal to her cause of action. complaints Plaintiff's timeframe is not See Lau v. Klinger, 46 F. Supp. 2d 1377, 1380 (S.D. Ga. 1999). Rather, Plaintiff may avoid a dismissal of this action by demonstrating good cause for failing to meet the service deadline, in which case the Court would appropriate be obligated period. See to extend that Lepone-Dempsey, deadline 476 F.3d for at an 1281 (citing Fed. R. Civ. P. 4(m)). Alternatively, Plaintiff may avoid dismissal by convincing the Court to exercise its discretion to extend service even in the absence of good cause. the time for See id. (citing Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1132 (11th Cir. 2005)); Lau, 46 F. Supp. 2d at 1380 (citing Madison v. BP Oil Co., 928 F. Supp. 1132, 1135 (S.D. Ala. 1996)). first resolve discretionary the issue of good considerations. cause See, The Court must before e.g., turning Petrucelli to v. Bohrinqer & Ratzinger, 46 F.3d 1298, 1306 (3d Cir. 1995); Lau, 46 F. Supp. 2d at 1381. A. Good Cause ^^Good cause exists as reliance on faulty ^only when some outside factor[,] such advice negligence, prevented service.'" rather than inadvertence or Lepone-Dempsey, 476 F.3d at 1281 {alteration in original) (quoting Prisco v. Frank, 929 F.2d 603, 604 (11th Cir. 1991)). Courts have likened good cause to the neglect," see a of concept 6(b)(1)(B), of which ^^excusable requires showing Fed. good R. Civ. faith and P. a reasonable basis for noncompliance with the time set forth in the rule. See, e.g., Adams v. AlliedSignal Gen. Aviation Avionics, 74 F.3d 882, 887 (8th Cir. 1996) (citing Lujano v. Omaha Pub. Power PiSt., 30 F.3d 1032, 1035 (8th Cir. 1994), and Pellegrin & Levine, Chartered v. Antoine, 961 F.2d 277, 282-83 (B.C. Cir. 1992)); Lau, 46 F. Supp. 2d at 1380 (citing Madison, 928 F. Supp. at 1137). While certain factors outside of a plaintiff's control satisfy this standard, neither inadvertence of counsel nor unfamiliarity with the governing rules is one of them. See, e.g., Petrucelli, 46 F.3d at 1307 (citing Lovelace V. Acme Mkts., Inc., 820 F.2d 81, 84 (3d Cir. 1987)); Hamilton V. Endell, 981 F.2d 1062, 1065 (9th Cir. 1992) (citing Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985)). Nor does the tolling of the statute of limitations excuse noncompliance with Rule 4(m). Leonard, 742 F. Supp. at 662 n.8. Plaintiff fails to demonstrate good cause for her untimely service on Defendants. Plaintiff offers virtually no reason for failing to serve Defendants beyond that the ownership of the supermarket situation." where the incident Dkt. No. 20. took place is a ^^confusing While it does appear that ownership of the supermarket changed hands in 2014, Plaintiff was aware of this fact as early as December 14, 2015. Furthermore, Defendants Dkt. No. Plaintiff filed 18. was alerted their As Motion such, it to has Dkt. No. 20-1 p. 1-2. to the Dismiss been service on over issue March six when 24, 2016. months since Plaintiff was formally notified she had not served Defendants, yet she still Therefore, the has not accomplished service of process. Court cannot find good cause for her dilatory service here. B. Discretionary Considerations Rule 4(m) affords the district court discretion to enlarge the 90-day period for service of process even if Plaintiff fails to establish good cause. Horenkamp, 402 F.3d at 1132 (citing Henderson v. United States, 517 U.S. 654 (1996)). A permissive extension of time for service may be warranted, 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." Civ. P. 4(m) advisory Id. at 1132-33 (quoting Fed. R. committee's note to 1993 amendment). Other relevant considerations may include whether the defendant had notice of the suit despite the plaintiff's failure to perfect timely service, and whether the defendant has received proper service since the close of the 90-day window. 1133. See id. at The Court declines to grant a time extension in this case. The statute of limitations period for a personal injury action in Georgia is two years. OCGA § 9-3-33. Since the incident in this case occurred on December 6, 2013, a dismissal here would amount to a dismissal with prejudice because a re-filed action against Defendants would be outside the statute of limitations. However, ^'the running of the statute of limitations does not require that a district court extend the time for service of process," as the court has discretion in making this decision. Horenkamp, 402 F.3d at 1132. Here, Plaintiff's excuse is no excuse at all. The Defendants remain unserved over a year after the filing of the original action and six months after filing their Motion to Dismiss for lack of service. lack of ownership action of the is the store Plaintiff's only excuse for her amount where of confusion the ownership question may have very incident regarding the occurred. The well been confusing. Yet, Plaintiff was no longer confused on December 14, 2015. This was the of Mergers, of Harvey's date indicating Supermarket. ago. Plaintiff that received Defendants the were Memorandum the Dkt. No. 20-1 pp. 1-2. Defendants remain xinseirved. owners This was almost a year At this point, the Court would be granting what would amount to over a 180 day extension, more than double the amount originally given to Plaintiff under Rule 4(m). The Court declines to grant an extension in this case, and Defendants' Motion to Dismiss is hereby granted. CONCLUSION Based on the foregoing. Defendants' Motion to Dismiss (Dkt. No. 18) is GRANTED. SO ORDERED, this 12th day of December, 2016. LISA GODBEY WOOD, CHIEF JUDGE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA D72A ev. 8/82)
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