United States District Court, E.D. Arkansas, Western Division
ORDER
SUSAN
WEBBER WRIGHT UNITED STATES DISTRICT JUDGE
Geneva
Kathryn Howanietz brings this action against Lorenzo Lambert
Watson and his employer, Schenk & Sons, Inc. (Schenk),
alleging that on the afternoon of August 2, 2018, she was
driving a 1997 Toyota T-100 when Watson, driving a 2014
Kenworth Tractor Trailer owned by Schenk, negligently and
carelessly failed to yield the right of way and caused her to
collide with the side of his vehicle, resulting in damages to
herself and her vehicle. Schenk has counterclaimed against
Howanietz, claiming that Howanietz recklessly and negligently
caused the accident, resulting in excess of $75, 000 damages
to Schenk.
Before
the Court is a motion [doc.#14] of Watson to dismiss on
grounds that both the process and service of process were
insufficient. Howanietz has responded in opposition to
Watson's motion.
I.
Howanietz
filed this action in the Circuit Court of White County,
Arkansas on January 4, 2019, and summons was issued to
defendants. Schenk was served the summons and complaint on
January 16, 2019. Defendants removed the action to this Court
on February 13, 2019, and answered Howanietz's complaint
on March 1, 2019. Howanietz served the summons and complaint
on Watson on May 1, 2019.
II.
Watson
argues that service upon him was not made until 117 days
after the filing of the complaint and must be dismissed
pursuant to Fed.R.Civ.P. 4(m), which provides “[i]f 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…” Watson further argues that the
summons is defective in that it wrongly advises that a
written answer must be filed with the clerk of the White
County Circuit Court within 30 days. Watson argues that this
Court thus does not have jurisdiction over him.
The
Court finds that service on Watson was timely because Watson
was served within 90 days after defendant removed the action
to this Court. The time for serving Watson under Arkansas law
had not expired at the time of removal to this Court, and the
time for serving him after removal to this Court began
running on the date of removal. See, e.g., Wallace v.
Microsoft Corp., 596 F.3d 703, 70610th Cir.
2010) (“Once Microsoft removed the case to federal
court prior to the expiration of the ninety-day period for
service under state law, 28 U.S.C. § 1448 and
Fed.R.Civ.P. 4(m) gave Mr. Wallace an additional [90] days in
which to perfect service.”); Hall v.
O'Clallaghan, 4:13cv3066, 2013 WL 12141247, at *2
(D. Neb. June 26, 2013) (Rule 4(m)'s time limit for
service did not begin to run until the action was removed to
federal court).
To the
extent the summons is defective, Rule 4(a)(2) allows the
Court to permit a summons to be amended. Watson has not shown
he was prejudiced by the summons advising that a written
answer must be filed with the clerk of the White County
Circuit Court within 30 days. Watson had notice of the
proceeding, filed a notice of removal, filed an answer, and
filed a motion to dismiss. At this point in the proceedings,
the defect in the summons is harmless. Accordingly, the Court
will permit Howanietz permission to amend the summons and
serve Watson with the summons and complaint nunc pro
tunc within twenty one (21) days of the date of entry of
this order. Cf. Ward v. Kramer School Art Loft Limited
Partnership, 4:13cv0660 JM, 2015 WL 12835622, at *2
(E.D. Ark. Feb. 10, 2015) (allowing plaintiff permission to
amend defective summons and serve the defendant nunc pro
tunc where defendant had notice of the proceeding, filed
a motion to dismiss, and the mistake on the summons was, at
that point in the proceedings, harmless); Broadway v.
adidas America, Inc., No. 3:07cv000149 SWW, 2008 WL
2705566, at *4 (E.D. Ark. July 10, 2008) (“Under
federal law, if the summons and complaint have been
successfully delivered to the defendant and service is
otherwise proper, purely technical errors in the form of the
summons may not invalidate service absent a showing of
prejudice.”).
III.
For the
foregoing reasons, the Court denies Lorenzo Lambert
Watson's motion [doc.#14] to dismiss. The Court will
permit Geneva Kathryn Howanietz permission to amend the
summons and serve Watson with the summons and complaint
nunc ...