UNITED STATES OF AMERICA v. ZOTTER, No. 2:2011cv00002 - Document 20 (W.D. Pa. 2011)
Court Description: MEMORANDUM and ORDER denying 15 Motion to Dismiss; United States is directed to serve the defendant within 45 days of the entry of this order on the Court's docket. Signed by Chief Judge Gary L. Lancaster on 7/13/11. (map)
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UNITED STATES OF AMERICA v. ZOTTER Doc. 20 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA, Plaintiff, v. Civil Action No. 11-0002 CRAIG S. ZOTTER, Defendant. MEMORANDUM Gary L. Lancaster, Chief Judge. This is a July I ", 2011 breach of contract action to collect more than $125,000.00 in unpaid student loan debt. The United States of America filed a complaint against Craig S. Zotter on January 3, 2011. In an opinion issued on May 9, 2011 1 we concluded that Zotter had never been properly served and ordered the government to serve Zotter within twenty has filed a (20) days [doc. no. 14]. Zotter motion to dismiss alleging that he has still not been served [doc. no. 15]. The government acknowledges that it did not serve Zotter by the May 31, 2011 deadline, but contends that it was unable to do so because Zotter is evading service. [doc. no. 19 at 6] . Because there is no dispute that Zotter has yet to be served, and because more than 120 days government filed its complaint, have passed since the in ruling on Zotter's motion to dismiss we are actually deciding whether to "order that service Dockets.Justia.com be made within a specified t of Civil Procedure 4 (m) . whether good cause service in a " in accordance with Federal Rule To exists do for the timely manner. so we must failure If so, to then first determine have effectuated we must grant the McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191, extension. 196 (3d Cir. 1998); Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 whether (3d a Cir. discretionary Telecommunications 1098 (3d Cir. are to by lack of t enlargement Corp. 1995). consider plaintiff's ef an 1995). rts If not, extension V. we must is Teleconcepts, still appropr Inc., consider teo 71 F.3d MCI 1086, In deciding whether good cause exists, we three factors: to serve [;] (2) reasonableness " (1) prejudice to of defendant ly service[;] and (3) whether plaintiff moved for of time." that the government is not entitled to an extension for good cause, but Id. at We 1097. find we will grant the government a discretionary extension of time because Zotter is evading service. The government has failed to recognize or address the three good cause factors set forth above. consideration not exist those factors, this case. Upon our independent we conclude that good cause does Although the government attempted service, both in February of 2011 and in May of 2011, we do not consider its efforts to be particularly reasonable. government has done no more than visit Zotter's home on a 2 The few occasions, leaving each time when a knock on the door was either not answered, or answered by someone other than Zotter himself. Service at a defendant's home is, of course, not the only method of service permitted under the Federal Rules of Civil Procedure. R. FED. P. CIV. In 4(e). addition, the government effectuate service under Pennsylvania state law. 400 (a) and 402. methods is That immaterial the government under the prefers could Pa.R.C.P. not circumstances. to As No. use such such, the rst factor weighs against a finding of good cause. The second factor weighs in favor nding of good cause because Zotter is not prejudiced by the lack of service. There is no dispute that he has had actual notice of the claims against him since at least March of 2011. F.3d 756, 759 (3d Cir. 1997) However, did not request Boley v. Kaymark, 123 (collecting cases). there is also no dispute that the government an additional extension deadline set forth in our May 9, of time before 2011 order passed, even though its last attempt at service occurred ten days prior. attorney exercising notified this reasonable court of its care belief and A prudent diligence that Zotter the would was have evading service and its resulting inability to comply with the deadline set forth allowed in the the May deadline 9, 2011 to order. pass. Instead Therefore, weighs against a finding of good cause. 3 the the government final factor Under these facts, we find that the government has failed to demonstrate good cause for its failure to have served Zotter. However, grant the we will, government a in the exercise of our discretion, further extension of serve Zotter because he is evading service. If he were not, at 1305-06 & n.7. time in which to Petrucelli, 46 F.3d there would be no reason for the door of his home not to be answered when people are seen in the window, such lights are on, conduct actionably to be and cars are in the garage. particularly unethical, given egregious, potentially is Zotter that and We find licensed a Pennsylvania attorney. we Nevertheless, reiterate that service at a defendant's home is not the only method of service available to the government. downtown to their behalf. service should be upon of because requests, service, his With able government place He presumably maintains Pittsburgh. order service Zotter, a practicing attorney, to make business. Zotter has some locate him. can clients, FED. and makes measure him R. service in Crv. P. No. to office to hours in appearances court effort, order through Pa.R.C. P. refused of has an office in on the effectuate If 4 (e) (2) (A) • the She ff at 402 (a) (2) (iii) . waive government service, personal not, Zotter's Notably, despite two all expenses incurred in connection with effectuating including related attorney's fees, 4 will be imposed on Zotter. R. FED. evasion Crv. service, door to his home, P. to As 4 (d) (2) • include such, refusing Zotter's continued to simply or directing other family members does no more than delay resolution of this case answer the to do so, on its merits and cost Zotter himself money. The government is cautioned that its efforts to serve Zotter must go beyond those methods undertaken to date. Zotter continue to evade service, so notify efforts secure this to serve service notify the court, service period. Zotter. wi thin court and the the government is to promptly provide Should time detailed the evidence government allot ted, in advance of Should the result unable government the expiration of Failure to do so will be of the is its to to extended in dismissal of this action. An appropriate order will with this memorandum. 5 be led contemporaneously IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA, Plaintiff, v. Civil Action No. 11-0002 CRAIG S. ZOTTER, Defendant. ORDER AND NOW, this day of July, ORDERED that Zotter's motion to dismiss 2011, [doc. no. it is HEREBY 15] is DENIED; and It is FURTHER ORDERED that The United America is directed to serve Zotter within forty-five States (45) of days of the entry of this Order on the court's docket. BY THE COURT, cc: All Counsel of Record C.J.
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