United States District Court, S.D. Ohio, Western Division
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.
J. Doltt Judge United States District Court.
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.
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.
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.)
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. (Doc. 13.)
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 and is insufficient as relevant to its
Rule 12(b)(5) Motion to Dismiss.
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.
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).
sufficient service of process is described in Rule 4. Service
must be perfected within ninety days of the filing of the
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).
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
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) ...