United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr. Judge, United States District Court
Biomet, Inc., et al, (collectively, “Biomet”)
have filed a motion to dismiss Libbie Brown's complaint
for failure to comply with Fed.R.Civ.P. 4(m). Ms. Brown
responds by arguing excusable neglect and requests an
extension of time for which to properly serve a copy of
complaint and summons on Biomet. For the reasons stated
below, I deny Biomet's motion to dismiss and grant Ms.
Brown's request for an extension of time to serve Biomet.
Brown filed her original complaint on April 17, 2018 but
didn't serve it on Biomet. Despite not being served with
the complaint or summons, two attorneys appeared for Biomet
on April 26 and on August 22 Biomet filed this motion to
dismiss for failure to serve. I am left with the unusual
situation of considering a motion to dismiss for failure to
serve defendants that appear to have been aware a complaint
had been filed, entered an appearance shortly thereafter, and
took no position regarding Ms. Brown's assertion that the
oversight was the result of excusable neglect.
service of process is necessary for a court to have personal
jurisdiction over a party. Rabiolo v. Weinstein, 357
F.2d 167 (7th Cir. 1966). A general appearance doesn't
waive personal jurisdiction defenses, which includes
insufficient service under Fed. R. Civ. P 12(b)(5).
Capital Airline Engine Leasing, LLC v. European Aviation
Air Charter, Ltd., 2011 U.S. Dist. LEXIS 57700, *6 (C.D.
Ill. May 31, 2011); Montgomery, Zuckerman, Davis, Inc.,
v. Diepenbrock, 698 F.Supp. 1453, 1459 (I.N. SD.
November 21, 1988) (“entering an appearance…does
not constitute a waiver of the defense); Product
Components, Inc. v Regency Door and Hardware, Inc., 568
F.Supp. 651, 655 (S.D. Ind. August 4, 1983) ("With the
abolition of special appearances a party does not waive the
defenses available to him by entering a general appearance in
an action. He may now appear and then raise his defenses
either by way of responsive pleading or motion.”);
but cf Mallard v. Mallard, 1992 U.S. Dist. LEXIS
2346, at *10 (N.D. Ill. March 3, 1992) (“If a defendant
files a general appearance without objecting to personal
jurisdiction, he is deemed to have consented to the
court's jurisdiction.”). An appearance doesn't
cure service deficiencies under Fed.R.Civ.P. 4. Bennet v.
Circus U.S.A., 108 F.R.D. 142, 148 (N.D. Ind. 1985)
(“knowledge of the pendency of this lawsuit cannot cure
the deficiencies in service.”); Mid-Continent Wood
Products, Inc. v. Harris, 936 F.2d 297, 301 (7th Cir.
1991) (quoting Way v. Mueller Brass Company, 840
F.2d 303, 306 (5th Cir. 1988) (“it is well recognized
that a ‘defendant's actual notice of the litigation
… is insufficient to satisfy Rule 4's
appearance doesn't cure the deficiencies in Mr.
Brown's service of process, namely that the complaint and
summons were never served. Biomet's appearance, although
insufficient to fulfil Fed.R.Civ.P. 4's service
requirements, does show, on some level, that defendants
received notice of the litigation. Mid-Continent Wood
Products, Inc. v. Harris, 936 F.2d at 301. Fed. R. Civ.
P 4 provides instruction on what the court can do when
plaintiff hasn't served the defendant, stating that
“if a defendant is not served within 90 days after the
complaint is filed, the court […] must dismiss the
action without prejudice against the defendant or order that
service be made within a specified time.” Fed R. Civ.
P. 4(m). I have the option to either dismiss, without
prejudice, Mr. Brown's complaint for noncompliance with
Fed.R.Civ.P. 4 or order service be made within a specified
Brown says service was intended but was not effectuated
because a paralegal responsible for the service had left the
law firm without handling the matter before the service
deadline. Ms. Brown and her attorneys are still responsible
for service regardless of a paralegal's inaction. ABA
Model Rule 5.36; ABA Model Guidelines for the Utilization of
Paralegal Services, Guideline 41 (2018) (“[a] lawyer is
responsible for all of the professional actions of a
paralegal performing services at the lawyer's
direction…”). Still, this explanation is enough
for a court to extend the time for service. United States
v. McLaughlin, 470 F.3d 698, 700 (7th Cir. 2006)
(“if good cause for delay is shown, the court must
extend the time for service, while if good cause is not
shown, the court has a choice between dismissing the suit and
giving the plaintiff more time.”); Troxell v.
Fedders of N. Am. Inc., 160 F.3d 381, 383 (7th Cir.
1998) (outlining non-exhaustive factors that allow for an
extension of time for service). In fact, no explanation is
needed at all. United States v. McLaughlin, 470 F.3d
at 701 (“[t]his case is a good example of the wisdom of
Rule 4(m) in allowing a judge to excuse a delay in service
even if the plaintiff has no excuse at all.”).
dismissal is a particularly harsh sanction, especially when a
court has yet to consider less draconian actions to cure a
given deficiency. Godlove v. Bamberger, 903 F.2d
1145, 1148 (7th Cir. 1990); Schilling v. Walworth County
Park & Planning Comm'n, 805 F.2d 272, 275 (7th
Cir 1986); See also Webber v. Eye Corp.,
721 F.2d 1067, 1069 (7th Cir. 1983) (“[a] dismissal
with prejudice is a harsh sanction which should usually be
employed only in extreme situations, where there is a clear
record of delay or contumacious conduct, or when other less
drastic sanctions have proven unavailable.”).
Dismissing Ms. Brown's complaint without prejudice would
be particularly uneconomical considering she would be free to
file the same complaint again.
the court DENIES the defendants' motion to dismiss [Doc.
No. 17] for failure to comply with Fed.R.Civ.P. 4(m), and
GRANTS plaintiff's request for an extension of time in
which to serve the defendants [Doc. No. 18]. Ms. Brown ...