Judge Ezra Denies Motion to Dismiss for Failure to Serve Process Because Delay Was Not Prejudicial

Cullum v. Siemens, et al., No. SA-12-CV-49-DAE (W.D. Tex. February 10, 2014)(Ezra, D.)

In an action against the police officers involved in the shooting death of plaintiffs’ son, the Court denied defendants’ Motion to Dismiss for failure to serve process within the 120-day time period required by Federal Rule of Civil Procedure 4(m). Order at p. 1.

Plaintiffs claimed that good cause existed for their failure to timely serve process on two police officers because they had mistakenly sent the waivers for process to the wrong police department. Id. at 7. But the Court held that plaintiffs failed to satisfy Rule 4(m)’s good cause exception because they had been informed of the police officer’s correct place of employment 17 months before service was finally effectuated. Id. at 8.

Relying on Thrasher v. City of Amarillo, 709 F.3d 509, 511 (5th Cir. 2013), the Court applied a “heightened standard” to determine whether to exercise its discretion to dismiss the action for failure to serve process. Id. at 9. Under this standard, the Court was required to determine if there was “a clear record of delay” or “contumacious conduct” by the plaintiff, and if so, whether any aggravating factors supported dismiss. Id. The Court found that there was a “clear record of delay” by plaintiffs’ counsel, but that the lack of any aggravating factors warranted imposing a lesser sanction than dismissal. Id. at 8-11. The Court also noted that defendants’ counsel admitted that there had been no actual prejudice to the defendants as a result of plaintiffs’ delay. Id. at 16.