United States District Court, E.D. Arkansas, Jonesboro Division
HOLYOKE MUTUAL INSURANCE CO., d/b/a Middleoak a/s/o Aspen Garden Apartments, PLAINTIFF
EAST ARKANSAS AREA AGENCY ON AGING, INC. and CYNTHIA UNDERWOOD, DEFENDANTS
Marshall Jr., United States District Judge
This subrogation case is bogged down in service-related
problems. Holyoke paid claims arising from a bad fire at the
Aspen Garden apartments. The fire took an older
resident's life. The investigation revealed that the
resident's caregiver, Underwood, may have been at fault
through a cigarette. Holyoke now seeks recovery from
Underwood and her employer, the East Arkansas Area Agency on
Aging, Inc. Most, if not all, of the service-related facts
are agreed. The Agency and Underwood (through their common
counsel) ask the Court to dismiss, while Holyoke asks for
Holyoke sued in April 2017, about a week before the statute
of limitations ran. The complaint contained a misnomer:
Holyoke left off the "Inc." at the end of East
Arkansas Area Agency on Aging, Inc.'s name. This error
was echoed in the summons, which had other defects. For
example, it included the wrong zip code and (it turned out) a
completely wrong address for Underwood. No. 21 at 3,
Plus the summons served had no raised seal. Holyoke served
the defective process on the Agency correctly under Arkansas
law -by mail restricted to the Agency's agent for
service. No. 23-1 at 13; ARK. R. ClV. P. 4(d) (8)
(A) (i). Holyoke tried to serve Underwood by certified and
restricted-delivery mail, but the letter came back
undeliverable. No. 23-2 at 2. The Agency and
Underwood responded with a timely motion to dismiss, arguing
the misnomer and the defects in the summons. The Agency and
Underwood also filed a joint answer, preserving all their
service-related and process-related defenses. In late May and
early June, Holyoke responded to the motion and filed an
amended complaint correctly naming the Agency. Holyoke sent
the new pleading, plus corrected summonses, to defense
counsel. By cover letter, Holyoke asked counsel to waive
service, enclosing a return envelope and (the Court assumes)
the Rule 4 waiver form. FED. R. ClV. P. 4(d)(1). In mid-June,
the Agency and Underwood answered, again preserving all their
service-related and process-related defenses. No.
early July, the Court denied the first motion to dismiss
without prejudice. No. 17. The Court noted several
things: good service was required; Holyoke had started its
cure with the amended complaint; and it planned to finish by
the ninety-day deadline, which the Court calculated as 17
July 2017, right around the corner.
the same time, in early July, Holyoke engaged a process
server to find and serve Underwood in person. Before suit was
filed, Holyoke had tried to locate her, and thought it had in
July 17th deadline passed. A few days later, two things
happened. The wrong Cynthia Underwood was served in person.
And defense counsel informed Holyoke that the Agency and
Underwood would not waive service. There was some further
confusion, because in early July the Agency's registered
agent had been replaced. Holyoke eventually correctly served
both defendants with the amended complaint and corrected
summonses. This was accomplished by mid-August, about a month
after the service period expired.
hindsight, it's clear that Holyoke should have asked for
an extension in early July. Its imperfect service efforts,
Underwood's elusiveness, the pending waiver request, and
the looming deadline would have provided good cause for a
short extension. Kurka v. Iowa County, Iowa, 628
F.3d 953, 956-58 (8th Cir. 2010). But Holyoke didn't ask.
there excusable neglect in all this? Considering all the
circumstances, the Court concludes that there was.
Pioneer Investment Services Company v. Brunswick
Associates Ltd, Partnership, 507 U.S. 380, 395 (1993);
Treasurer, Trustees of Drury Industries, Inc. Health Care
Plan & Trust v. Goding, 692 F.3d 888, 893-94 (8th
Cir. 2012). Holyoke tried to complete timely service, but
failed repeatedly. Unlike in Kurka, Holyoke was
trying. 628 F.3d at 958-59. Its foundational mistake - the
misnomer - was a modest one, which the Rules contemplate
fixing where no one has been misled. Fed.R.Civ.P.
15(c)(1)(C). No one was misled here. There was no bad faith,
just fumbling around. And fumbles of this sort, even if
unforced, can be excused. Treasurer, 692 F.3d at
893. The circumstances allow for that here. The Agency knew
that it and its former employee were being sued. They
vigorously preserved and pursued their defenses in a timely
fashion. The potential prejudice to Holyoke of losing its
claims to a limitations defense in a re-filed suit outweighs
the prejudice to the Agency and Underwood of going forward to
the merits now. Chorosevic v. MetLife Choices, 600
F.3d 934, 946-47 (8th Cir. 2010). The new ninety-day service
period is salutary, but sometimes more time is needed. And
the law favors decisions on the merits. Sugarbaker v. SSM
Health Care, 187 F.3d 853, 856 (8th Cir. 1999).
Holyoke's errors in not getting good service before July
17th, or an extension to do so, are excusable.
Court therefore reopens and extends the time for service
until 31 August 2017. Holyoke's motion for belated
extension, No. 23, is granted as modified. The
Agency and Underwood's second motion to dismiss, No.
25, is denied with a carve out. The Agency's
charitable immunity is one of the deep issues in the case.
The Court still ...