United States District Court, D. New Jersey
EHA'S MOTION TO DISMISS [D.E. 13]
REPORT AND RECOMMENDATION
C. MANNION UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant, EHA of Buffalo, Inc. d/b/a Eastern
Hospitality Advisors, LLC's (“EHA”) Motion to
Dismiss the Amended Complaint for insufficient service of
process.The Honorable John M. Vazquez, United
States District Judge, referred the motion to the undersigned
for report and recommendation. The Court has reviewed the
parties' respective submissions. For reasons set forth
here, the undersigned respectfully recommends Defendants'
Motion to Dismiss be Denied.
Mr. Cabrera, filed his Complaint against EHA and Douglas
Vanstrom and Sam LaGabimina (“the Individual
Defendants”) on May 3, 2018. Also on May 3, 2018, Mr.
Cabrera sent a Waiver of the Service of Summons
(“Waiver”) to EHA's counsel. In June of 2018,
EHA's counsel executed the Waiver and informed Mr.
Cabrera's counsel he would likely represent the
Individual Defendants and would confirm at a later
date. On August 1, i.e. 90 days after Mr.
Cabrera filed his complaint, EHA's counsel informed Mr.
Cabrera he would not be representing the Individual
Defendants. Mr. Cabrera served the Individual
Defendants with the Summonses and Amended Complaint on August
6, 2018. The Individual Defendants filed a motion
to dismiss for failure to timely serve within 90 days of the
filing of the Complaint.
may dismiss a case for "insufficient service of
process." Federal Rule of Civil Procedure 4(m)
(“Rule 4(m)”) provides “if 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 or order that service be made within a
specified time.” Rule 4(m) requires the court to extend the
time for service “if the plaintiff shows good cause for
the failure” to serve on time. Even without a finding of
good cause, “the court may in its discretion decide
whether to dismiss the case without prejudice or extend time
for service.” Courts consider three factors in
determining the existence of good cause: (1) the
reasonableness of plaintiff's effort to serve; (2)
whether the plaintiff moved for an enlargement of time to
serve; and (3) whether the defendant is prejudiced by the
lack of timely service. A plaintiff has the burden to
establish whether good cause exists. The primary focus is
“on the plaintiff's reasons for not complying with
the time limit in the first place.” The Third
Circuit equates good cause with the concept of
“excusable neglect, ” which requires “a
demonstration of good faith on the part of the party seeking
an enlargement and some reasonable basis for noncompliance
within the time specified in the rules.”
DISCUSSION AND ANALYSIS
Court respectfully recommends that this case not be dismissed
under Rule 4(m) because Mr. Cabrera displayed good cause for
failing to serve the Individual Defendants within 90
days. The first “good cause”
factor is met because EHA's counsel communicated that he
would “likely” represent the Individual
Defendants. Mr. Cabrera reasonably expected
EHA's counsel might also execute a Waiver for the
Individual Defendants as EHA's counsel previously
executed a Waiver for EHA and that service would therefore be
waived. After EHA's counsel informed Mr.
Cabrera he would not be representing the Individual
Defendants, Mr. Cabrera promptly served the Individual
Defendants five days later. Therefore, the Court finds Mr.
Cabrera's efforts to serve based on opposing
counsel's representations reasonable.
the second factor, i.e. whether plaintiff moved for an
enlargement of time, the Court finds that Mr. Cabrera's
actions constituted excusable neglect. Mr. Cabrera's
neglect was excusable because he was reasonably expecting to
execute a waiver of service for the Individual Defendants as
he had done for EHA. EHA's counsel did not notify Mr.
Cabrera that he would not represent the Individual Defendants
until late on the day service was due. Therefore,
Mr. Cabrera's failure to move for an extension of time
was excusable because he was reasonably depending on the
opposing counsel's actions and could not move to extend
time to serve on the day service was due.
the Court finds that Defendants will not be prejudiced by Mr.
Cabrera's delay in service because Mr. Cabrera served the
Individual Defendants only five days after the
deadline.A finding of prejudice to the Defendants
is unlikely considering they make no showing of how the
delayed service prejudices their ability to defend the
case. The Court has not yet issued a
scheduling order or set a discovery deadline. Nor have the
parties engaged in any written discovery or conducted any
depositions. Therefore, the delay in service has not
impacted or prejudiced the Individual Defendants' ability
to defend this case.
the three factors together, the Court finds Mr. Cabrera meets
the good cause standard. Even if there is no good cause, the
Court will allow the case to proceed. The Third
Circuit stated its preference for deciding cases on their
merits, rather than through procedural
technicalities. This is particularly applicable here as
the Individual Defendants are now represented by EHA's
counsel and received a Summons and Amended
conclusion, I respectfully recommend that Defendant's
Motion to Dismiss (D.E. 13) be Denied. The
Parties have fourteen (14) days to file and serve ...