Delay to Serve Key to Dismissal From Lawsuit

Obtained a dismissal from litigation on behalf of a mental health professional working in a correctional facility after an inmate committed suicide. Following the death, administrators of the decedent's estate brought suit against multiple individuals and entities. The defense raised multiple grounds for dismissal of the client, including F.R.C.P. 12(b(4) and 12(b)(5) for insufficient service of process. In this case, the amended complaint was filed in June 2011, but service was not effected on the defendant mental health professional until August 2013.

The issue for the court was whether the plaintiffs had shown that a 771-day delay—nearly six and one-half times the time allowed for service in Federal Rule 4(m) -- while the case proceeded through discovery was reasonable. The plaintiffs argued that they conducted "numerous internet searches" and that, when the internet searches were unavailing, and "substantial motion practice" occurred, the plaintiffs simply assumed the defendant had been served and was represented by counsel. The court found that the "meager" efforts by plaintiffs' counsel were not reasonable. Most troublesome for the court was the plaintiffs' failure to explain why, if they could not locate the defendant in 2011, how it was that they had no trouble locating and serving him in 2013 after discovering their oversight. The plaintiffs failed to show good cause for their delay, and the court declined to exercise its discretion in extending the time for the plaintiffs to properly serve this defendant. Although the statute of limitations had expired against the defendant, the court determined that the prejudice to the defendant outweighed granting an extension, which would only have served to reward a dilatory and half-hearted attempt at service. As such, the dismissal was with prejudice, and the defendant was removed as a party to the lawsuit.