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Greenbrier Hotel Corp. v. Ace American Insurance Company (Chubb)

United States District Court, S.D. West Virginia, Charleston Division

June 3, 2019

GREENBRIER HOTEL CORPORATION, et al., Plaintiffs,
v.
ACE AMERICAN INSURANCE COMPANY (CHUBBP), et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          JOSEPH R. GOODWN UNITED STATES DISTRICT JUDGE.

         I. BACKGROUND

         The plaintiffs filed their complaint [ECF No. 1] initiating this civil action on February 15, 2019. The plaintiffs have since taken no action to prosecute the case. To date, the plaintiffs have failed to serve-or even attempt to serve-any defendant in this matter with process. Accordingly, on May 21, 2019, this court entered an order [ECF No. 8] directing the plaintiffs to demonstrate good cause for not serving the defendants with process within 90 days of the filing of the complaint as required by Federal Rule of Civil Procedure 4(m). The court notified the plaintiffs that a failure to respond to the court's order within 10 days or an insufficient showing of good cause would result in dismissal without prejudice of this case against the defendants.

         On May 29, 2019, the plaintiffs filed a response [ECF No. 9] to the court's order, stating as follows: “On or about September 8, 2017, certain of the Plaintiffs and Defendants herein” entered into a tolling agreement “in relation to earlier litigation that Plaintiffs had filed to obtain copies of insurance policies that Defendants had refused to provide.” Pls.' Resp. [ECF No. 9] 1. “Pursuant to the terms of that Tolling Agreement, the parties agreed to toll” any statute of limitations, arbitration clause, suit limitation clause, or similar provision from June 2017 through the termination of the tolling agreement. Id. The claims covered by the tolling agreement “arguably include those asserted by Plaintiffs in the instant matter.” Id. The plaintiffs allege that they were unaware of the existence of the tolling agreement when they filed the instant complaint. Id.

         The plaintiffs state further that “Plaintiffs and Defendants”[1] have agreed to “extend the termination date” of the tolling agreement “to allow the parties to attempt to resolve the matters at issue in the Complaint.” Id. at 2. “The parties have agreed to participate in a meeting on June 18, 2019” to discuss whether the matter can be resolved and the complaint dismissed. Id. If the meeting is unsuccessful, the plaintiffs aver that they will proceed with service of process on the defendants on July 1, 2019. Id.

         The plaintiffs attached a letter agreement [ECF No. 9-1] to their response that was “executed by counsel for Plaintiffs and counsel for Defendants” in this matter. Id. The letter states that the “time for Plaintiffs to effect service of the Complaint shall be tolled from May 31, 2019 through June 30, 2019.” Id., Ex. A [ECF No. 9-1] 1. The agreement also states that “none of the Defendants in the Litigation will take any formal steps in the Litigation . . . until July 1, 2019.” Id. The plaintiffs therefore request that this matter remain on the court's active docket despite their failure to serve process as required by Rule 4(m).

         Notably absent from the plaintiffs' response, however, is any mention of the phrase “good cause” or a citation to any other legal standard. The plaintiffs fall far short of demonstrating that an extension of time to effect service of process is warranted in this matter. For the reasons set forth below, the court DISMISSES without prejudice the plaintiffs' complaint. Because the dismissal is without prejudice, the plaintiffs may refile the action.

         II. Discussion

         Rule 4(m) of the Federal Rules of Civil Procedure 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. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

         Fed. R. Civ. P. 4(m) (emphasis added).

         The plaintiffs filed their complaint with the court on February 15, 2019. Pursuant to Rule 4(m), the plaintiffs were required to serve the defendants by May 16, 2019. The plaintiffs do not dispute that they have failed to effectuate service within 90 days of the filing of the complaint. In fact, the plaintiffs do not allege that they have even attempted to serve any defendant.

         Nonetheless, the 90-day rule is not without exception. Critically, when a plaintiff shows good cause for the failure to serve within 90 days, the court “must extend the time for service.” Fed.R.Civ.P. (4)(m) (emphasis added). Courts examine a number of factors to determine if good cause exists to excuse a plaintiff's failure to serve timely-none of which are addressed in the plaintiffs' response. Those factors

include whether: 1) the delay in service was outside the plaintiff's control, 2) the defendant was evasive, 3) the plaintiff acted diligently or made reasonable efforts, 4) the plaintiff is pro se or in forma paurperis, 5) the defendant will be prejudiced, or 6) ...

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