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Almo Process Technology, Inc. v. Domino Land Services, LLC

United States District Court, S.D. Ohio, Western Division

May 26, 2017

ALMO PROCESS TECHNOLOGY, INC., Plaintiff,
v.
DOMINO LAND SERVICES, LLC, Defendant.

          ORDER SETTING ASIDE ENTRY OF DEFAULT (DOC. 8), DENYING MOTION FOR DEFAULT JUDGMENT (DOC. 9), DENYING MOTION TO DISMISS (DOC. 18), DENYING MOTION FOR AN AWARD OF COSTS FOR SERVICE OF PROCESS AND ATTORNEY'S FEES (DOC. 19), AND ORDERING DEFENDANT TO ANSWER COMPLAINT.

          Susan J. Doltt Judge United States District Court.

         This matter is before the Court on its Entry of Default (Doc. 8) of September 12, 2016; the Motion for Default Judgment (Doc. 9), as supplemented (Doc. 11), filed by Plaintiff Almo Process Technology Inc. ("Almo" or "Plaintiff) on September 20, 2016; the Motion to Dismiss filed by Defendant Domino Land Services, LLC ("Domino" or "Defendant") on March 8, 2017 (Doc. 18), and Plaintiff's Motion for an Award of Costs for Service of Process and Attorney's Fees (Doc. 19) filed on March 29, 2017. Having reviewed the pleadings, these matters are now ripe for the Court's ruling.

         I. BACKGROUND

         On March 31, 2016, Plaintiff filed a Complaint against Defendant-a diversity action- alleging breach of contract. Pertaining to its efforts to serve Defendant, Plaintiff proffers the Affidavit of its attorney, Kelly M. Schroeder, and documents reflecting certified mail service of the Complaint and Request for Waiver of Service of Summons upon the authorized agent and registered agent for Domino, Herbert T. Hughes and Michael G. Macs, respectively. (Schroeder Aff., Doc. 20, Ex. B.) The mailing directed to Hughes at the address provided for in the contract at issue herein was successfully delivered on April 11, 2016, though the mailing directed to Macs was not delivered. (Id. at PageID 193, 196.) Schroeder also emailed Hughes courtesy copies of the Complaint and Request for Waiver on June 29, 2016. (Id. at PageID 198.) The email requested a response from Hughes in reference to the duty set forth in Federal Rule of Civil Procedure 4(d)(1) "to avoid unnecessary expenses of servicing the summons." (Id.) Hughes did not respond on behalf of the Defendant, so Plaintiff began formal service measures.

         Summons issued on June 30, 2016, which was the ninety-first day from the filing of the Complaint. (Doc. 5.) Plaintiffs process server tried to determine the location of an agent for service of process after the address designated in the contract for notice and the address of Defendant's principal place of business did not yield an office for Defendant or anyone affiliated with Defendant. (Schroeder Aff., Doc. 20, Ex. B at PageID 191, ¶¶ 10, 11.) Finally, on August 12, 2016, 134 days after the Complaint was filed, Herbert T. Hughes, Defendant's agent per the parties' contract, was personally served. (Doc. 6.)

         Defendant did not file a responsive pleading within twenty-one days after being served. Accordingly, the Clerk of Courts issued an Entry of Default against Defendant on September 12, 2016. (Docs. 7, 8.) On September 20, 2016, Plaintiff filed a Motion for Default Judgment and, on December 2, 2016, filed a Supplemental Memorandum in Support pursuant to this Court's Order. (Docs. 9-11.) On January 25, 2017, the Court ordered the Clerk to serve these three documents on the address listed on the summons and the address at which Defendant was personally served.[1] (Doc. 13.)

         Defendant filed the instant Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5) and 4(m) on March 8, 2017. (Doc. 18.) Defendant argues that, because initial service of the Complaint was made outside the ninety-day window under Rule 4(m) and Plaintiff did not expressly request leave of Court for an extension, service was never actually perfected[2] and is insufficient as relevant to its Rule 12(b)(5) Motion to Dismiss.

         Finally, Plaintiff filed a Motion for an Award of Costs and Attorney Fees pursuant to Rule 4(d)(2) on March 29, 2017 based on Defendant's alleged refusal to waive service.

         II. APPLICABLE LAW

         Under Rule 12(b)(5), a party may move to dismiss for "insufficient service of process, " and such defense "must be made before pleading if a responsive pleading is allowed." Fed.R.Civ.P. 12(b) (emphasis added). The deadline for responsive pleading is twenty-one days after being served with the summons and complaint. Fed.R.Civ.P. 12(a)(1)(A). Such defense is waived if not made pursuant to the Rule. Fed.R.Civ.P. 12(h)(1)(B).

         Legally sufficient service of process is described in Rule 4. Service must be perfected within ninety days of the filing of the complaint:

If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. 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). The burden of establishing "good cause" lies with the party opposing the motion to dismiss. Beyoglides v. Montgomery Cty. Sheriff, 166 F.Supp.3d 915, 917 (S.D. Ohio 2016) ("Plaintiff bears the burden of exercising due diligence in perfecting service of process and in showing that proper service has been made.") (internal citations omitted).

         The term "good cause" is not defined in Rule 4(m). On one hand, "the Sixth Circuit has repeatedly recognized that extraordinary circumstances may warrant a finding of 'good cause' such that untimely service may be excused." Warrior Imports, Inc. v. 2 Crave, 317 F.R.D. 66, 69 (N.D. Ohio 2016) (internal citations omitted). On the other hand, "vague claims of hardship or unexpected difficulties in perfecting service" will not necessarily result in sufficient demonstration of "good cause." Id.

         The above notwithstanding, Rule 4(m) affords a district Court "discretion to grant an extension of time to serve the summons and complaint even in the absence of a showing of good cause." Vergis v. Grand Victoria Casino & Resort, 199 F.R.D. 216, 218 (S.D. Ohio 2000). In exercising such discretion, courts in this district have applied the following analysis to determine whether an extension is appropriate:

(1) whether a significant extension of time was required; (2) whether an extension of time would prejudice the defendant other than the inherent 'prejudice' in having to defend the suit; (3) whether the defendant had actual notice of the lawsuit; (4) whether a dismissal without prejudice would substantially prejudice the plaintiff... and (5) whether the plaintiff had made any good faith efforts at effecting proper service of process.

Freeman v. Collins, No. 2:08-cv-00071, 2011 WL 4914837, at *4 (S.D. Ohio Oct. 17, 2011) (quoting Stafford v. Franklin Cnty., Ohio, No. 2:04-CV-178, 2005 WL 1523369, at *3 (S.D. Ohio June 28, 2005) ...


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