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Dumas v. ABB Group, Inc.

United States District Court, Third Circuit

January 9, 2014

ARTHUR DUMAS, Plaintiff,
v.
ABB GROUP, INC., et al., Defendants.

MEMORANDUM OPINION

SHERRY R. FALLON, Magistrate Judge.

I. INTRODUCTION

Presently before the court in this personal injury diversity action is a Motion to Vacate the Magistrate Judge's November 25, 2013 Order (the "Motion" or "Motion to Vacate"), filed by Defendant ITT Corporation ("ITT"). (D.I. 282) Arthur Dumas (the "Plaintiff') opposes ITT's motion. (D.I. 289) For the reasons which follow, ITT's Motion to Vacate is DENIED.

II. BACKGROUND

The Plaintiff initiated this action on by filing a complaint in the Superior Court of Delaware on December 14, 2012. (D.I. 1, Ex. A) The complaint asserts various causes of action arising out of Plaintiff's alleged exposure to asbestos throughout his employment. ( Id. ) ITT was not named as a Defendant in that complaint. ( Id. )

Under the Delaware Superior Court's Standing Order No. 1, Plaintiffs had 60 days, or until February 12, 2013, to complete service of process for all Defendants. See Standing Order No. 1 ΒΆ 6, In re: Asbestos Litig., No. 77C-ASB-2 (Del. Super. Ct. Apr. 29, 2011).

On January 23, 2013, Plaintiff filed an affidavit in the Superior Court stating that he sent via registered mail a copy of the complaint to Foster Engineering Company. (D.I. 283, Ex. B) Plaintiff attached to the affidavit a copy of a return receipt showing that the complaint had been F.R.D. 453, 454 (D. Del. 2010).

When entertaining a motion to extend time for service, the court conducts a two-part inquiry. See Thompson v. Target Stores, 501 F.Supp.2d 601, 604 (D. Del. 2007). First, a court must determine whether there is good cause for the failure of proper service; if so, the court must extend the time for service and the inquiry is complete. Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995). Second, if good cause is not found, the court may, in its discretion, either grant an extension for service or dismiss the case without prejudice. Id . See also MCI Telecomms., 71 F.3d at 1098.

Courts generally consider three factors in determining whether good cause exists: "(1) whether the plaintiff has reasonably attempted to effect service; (2) whether the defendant is prejudiced by the absence of timely service; and (3) whether the plaintiff moved for an extension of time for effecting service." Thompson, 501 F.Supp.2d at 604 (citing United States v. Nuttall, 122 F.R.D. 163, 166-67 (D. Del. 1988)). When evaluating good cause, courts should focus primarily on the plaintiffs reasons for failure to obtain good service within the time frame set forth by Rule 4(m). Id . See also MCI Telecomms., 71 F.3d at 1097; Walkup v. Air & Liquid Sys. Corp., 2013 WL 5396674, at *2 (D. Del. Sept. 26, 2013), report and recommendation adopted, 2013 WL 5786517 (D. Del. Oct. 24, 2013).

IV. DISCUSSION

ITT offers two arguments in support of its Motion to Vacate. First, ITT contends that there was "no good cause pled or found to justify [the] extension under [Rule 4(m)]." (D.I. 283 at 6) Second, ITT asserts that "an additional discretionary extension of the service deadline was not justified under [Rule 4(m)] and ITT will otherwise be greatly prejudiced." (/d.)

The court agrees with ITT that there was no good cause for an extension of time to complete service of process. Nevertheless, the court properly exercised its discretion in granting the Plaintiff's request. Furthermore, under the facts of this case, ITT will not suffer great prejudice if its Motion to Vacate is denied.

A. Good Cause

In deciding whether to extend a plaintiff's deadline to serve the defendant pursuant to Rule 4(m), the court must first determine whether good cause exists for an extension of time. Petrucelli, 46 F.3d at 1305. When evaluating good cause, courts should focus primarily on the plaintiff's reasons for failure to timely ...


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