United States District Court, W.D. Arkansas, Texarkana Division
TONYA L. MARTIN; MARCUS REEDY; and ORRIS BOWLES PLAINTIFFS
BRENTWOOD INDUSTRIES DEFENDANT
O. Hickey United States District Judge
the Court is Defendant's Motion to Dismiss. ECF No. 6.
Defendant Brentwood Industries, Inc. seeks dismissal of
Plaintiffs' Complaint pursuant to Fed.R.Civ.P. 12(b)(2),
12(b)(4), and 12(b)(5) for insufficient service of process.
Plaintiffs have responded. ECF No. 10, 11. This matter is
ripe for consideration.
filed their Complaint against Defendant Brentwood Industries,
on April 28, 2016. ECF No. 1. Pursuant to the requirements of
Fed.R.Civ.P. 4(m), Plaintiffs were required to serve the
Summons and Complaint on the Defendant by July 27, 2016. On
June 16, 2016, the Clerk of Court issued a text only entry
No answer or other responsive pleading has been filed. The
file does not reflect a proof of service of the complaint
upon the defendant. Federal Rule of Civil Procedure 4(1)
requires proof of service to be filed with the court. If
service is not perfected on a defendant within 90 days after
filing the complaint, a show cause order will issue and the
complaint against that defendant is subject to dismissal
pursuant to Federal Rule of Civil Procedure 4(m).
then attempted service of process by certified mail on August
12, 2016. ECF No. 10-5. That parcel, addressed to Brentwood
Industries c/o Sharon Powell, Registered Agent, 306 North
Industrial Drive, Hope, AR 71801, was returned to Plaintiffs
because no such address existed and the United States Postal
Service (“USPS”) was unable to forward the
parcel. Id. The parcel was returned to Plaintiffs on
or about August 24, 2016. Id.
Plaintiffs' Response to Defendant's Motion to
Dismiss, Plaintiffs included a printout of Brentwood
Industries, Inc.'s corporate filing information as it
appeared on the Arkansas Secretary of State's website on
September 16, 2016. ECF No. 10-1. That filing listed Sharon
Powell as the registered agent of Brentwood Industries, Inc.,
but noted the agent's address as “306 N. Industrial
Park Drive, Hope, AR 71801.” Id.
August 30, 2016, Plaintiffs successfully delivered a copy of
the Summons and Complaint to Defendant Brentwood Industries,
Inc. via FedEx. ECF No. 10-3. The FedEx parcel was addressed
to Brentwood Industries, Sharon Powell, Registered Agent, 118
Brentwood Dr., Hope, AR, U.S. 71801.
September 16, 2016, Defendant Brentwood Industries, Inc.
moved to dismiss the pending action for insufficient service
of process because it was served more than 90 days after the
Complaint was filed and was incorrectly named in both the
Complaint and Summons as “Brentwood Industries.”
ECF No. 6.
to Fed.R.Civ.P. 4(m), “[i]f a defendant is not served
within 90 days after the complaint is filed, the court . . .
must dismiss the action without prejudice against that
defendant or order that service must be made within a
specified time.” Rule 4(m), further, requires that a
court extend the time for service for an “appropriate
period” in situations where “the plaintiff shows
good cause” for failing to serve the defendant within
90 days of filing the complaint. “A showing of good
cause requires at least ‘excusable neglect'-good
faith and some reasonable basis for noncompliance with the
rules.” Adams v. AlliedSignal Gen. Aviation
Avionics, 74 F.3d 882, 887 (8th Cir. 1996). Good cause
is likely to be found when the plaintiff's failure to
complete service in a timely fashion is (1) a result of the
conduct of a third person, typically the process server; (2)
the defendant has evaded service of the process or engaged in
misleading conduct; (3) the plaintiff has acted diligently in
trying to effect service or there are understandable
mitigating circumstances; or (4) the plaintiff is proceeding
pro se or in forma pauperis. Kurka v.
Iowa Cnty., Iowa, 628 F.3d 953, 957 (8th Cir. 2010); 4B
Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1137 (4th ed.).
plaintiff fails to show good cause, the court may extend the
time for service rather than dismiss the case without
prejudice. Kurka, 628 F.3d at 957. The plaintiff
must establish excusable neglect for such a discretionary
extension. Id. In determining whether neglect is
excusable, the court may consider the following factors: (1)
the possibility of prejudice to the defendant; (2) the length
of the delay and the potential impact on judicial
proceedings; (3) the reason for the delay, including whether
the delay was within the party's reasonable control; and
(4) whether the party acted in good faith. Kurka,
628 F.3d at 959.
Defendant Brentwood Industries, Inc. was not served within 90
days after the Complaint was filed, as required by
Fed.R.Civ.P. 4(m). If Plaintiffs show good cause for
noncompliance with Rule 4(m) this Court is required to extend
the time for service. The four factors discussed in
Kurka provide guidance as to whether Plaintiffs have
shown good cause. Plaintiffs make no allegation that they
failed to comply with Rule 4(m) due to the action of a third
person. As to the issue of whether Defendant Brentwood
Industries, Inc. has evaded service of process or engaged in
misleading conduct, Plaintiffs have failed to provide
evidence of such evasive action aside from stating that
Defendant “appears” to be evading service
“by having the wrong information on file with the
Secretary of State.” ECF No. 10. Such failure to update
corporate filings, absent other evidence, does not in itself
show an attempt to evade service or mislead.
regards to the level of diligence exercised by Plaintiffs in
attempting to complete service of process, they have not
provided any evidence that service was even attempted until
August 12, 2016, more than two weeks after the 90-day period
had expired. Further, Plaintiffs offer no explanation as to
why service was not attempted before August 12, 2016.
Although Plaintiffs correctly show that Defendant failed to
update the corporate filing with the Arkansas Secretary of
State, Plaintiffs have not demonstrated that they relied on
that incorrect information until after the
expiration of the 90-day period. It is reasonable for
Plaintiffs to rely on information filed with the Secretary of
State, but in the present case Plaintiffs have not shown such
detrimental reliance prior to August 12, 2016. Finally,
Plaintiffs successfully served Defendant on August 30, 2016,
thus showing that despite the incorrect information obtained
from the Secretary of State, Plaintiffs were able to find
Defendant's correct address fairly quickly and presumably
could have done so prior to July 27, 2016. All of these
facts show that ...