The opinion of the court was delivered by: Richard D. Bennett United States District Judge
Plaintiff Alena Rusnakova has brought this products liability action against Defendant World Kitchen, LLC, alleging that on November 11, 2008, she suffered injuries resulting from design and manufacturing defects in a dish that she bought from Defendant (ECF No. 2). Pending before this Court is Defendant's Motion to Dismiss (ECF No. 9) the Plaintiff's Complaint for insufficient service of process, pursuant to Rules 12(b)(2), 12(b)(4), and 12(b)(5) of the Federal Rules of Civil Procedure. Defendant argues that Plaintiff, who originally filed this action in a Maryland state court, has failed to serve process within 120 days of filing the action, thereby mandating dismissal under Rule 2-507(b) of the Maryland Rules of Civil Procedure.
This Court has reviewed the submissions by both parties and has determined that no hearing is necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons that follow, Defendant World Kitchen, LLC's Motion to Dismiss (ECF No. 9) is GRANTED and Plaintiff Alena Rusnakova's Complaint (ECF No. 2) is DISMISSED.
In ruling on a motion to dismiss, the factual allegations in a plaintiff's complaint must be accepted as true, and those facts must be construed in the light most favorable to the plaintiff.
Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Plaintiff Alena Rusnakova ("Plaintiff") is a resident of Baltimore, Maryland, who bought three dishes designed and manufactured by Defendant World Kitchen, LLC ("Defendant"). Pl.'s Compl. ¶¶ 2, 3. On November 11, 2008, Plaintiff suffered burns on her arms after one of the dishes broke while carrying hot food. Id. ¶ 6. Plaintiff alleges that design and manufacturing defects in the dish caused her injuries and is suing Defendant under a theory of products liability. Id. ¶¶ 8, 10.
On February 18, 2011, Plaintiff filed her Complaint against Defendant in the Circuit Court for Baltimore City, in which she alleged design defect, manufacturing defect, negligence, and breach of warranty. See id. Plaintiff served her Complaint on Defendant on November 9, 2012, over twenty months after she filed the suit. See Mot. to Dismiss 3, ECF No. 9. Defendant then removed the suit to this Court on the basis of diversity jurisdiction, pursuant to 28 U.S.C. § 1332. See Notice of Removal, ECF No. 1. On December 20, 2012, Defendant filed the subject Motion to Dismiss for insufficient service of process, citing Rules 12(b)(2), 12(b)(4), and 12(b)(5) of the Federal Rules of Civil Procedure.*fn1 In its Motion to Dismiss, Defendant argues that Plaintiff's service of process violated Rule 2-507(b) of the Maryland Rules of Civil Procedure, which requires that process be served within 120 days following the filing of a complaint.
Upon review, this Court finds that Plaintiff has failed to satisfy Rule 2-507(b) of the Maryland Rules of Civil Procedure. Accordingly, Defendant World Kitchen, LLC's Motion to Dismiss (ECF No. 9) is GRANTED, and Plaintiff Alena Rusnakova's Complaint (ECF No. 2) is DISMISSED.
Rule 2-507 of the Maryland Rules of Civil Procedure provides that "[a]n action against any defendant who has not been served . . . is subject to dismissal as to that defendant at the expiration of 120 days from the issuance of original process directed to that defendant." At any time before thirty days after service of the notice, a plaintiff can request a deferral of dismissal under Rule 2-507(e) with a showing of good cause for the delay in completing service. A litigant meets Rule 2-507(e)'s good cause standard "by proving willingness to proceed with the prosecution of the claim, and that the delay is not completely unjustified." Reed v. Cagan, 739
A.2d 932, 936 (Md. Ct. Spec. App. 1999). In addition, the trial court should consider whether the non-movant's delay has "substantially prejudiced the movant." Id. Deferring the dismissal of a case under Rule 2-507(e) is at the trial court's discretion. See Powell v. Gutierrez, 529 A.2d 352, 355 (Md. 1987).
Defendant argues that Rule 2-507(b) of the Maryland Rules of Civil Procedure mandates the dismissal of Plaintiff's Complaint, because Plaintiff failed to serve process upon Defendant within 120 days of filing her Complaint. State law governs the sufficiency and service of process before removal to federal court. See Eccles, 10 F. Supp. 2d at 519 (holding that process properly issued and served under state law remains sufficient after removal). Rule 2-507(b) states that an "action against any defendant who has not been served or whom the court has not otherwise acquired jurisdiction is subject to dismissal as to that defendant at the expiration of 120 days from the issuance of original process directed to that defendant." Under Rule 2-507(e), a court may defer the dismissal of a case if the plaintiff can prove "that the delay is not completely unjustified" and that the delay did not "substantially prejudice" the defendant. Reed, 739 A.2d at 936.
Plaintiff has failed to meet the requirements of Rule 2-507(b), because she did not serve Defendant with the Complaint until twenty months after she filed the lawsuit with the Maryland Circuit Court. The only issue that remains is whether this Court should exercise its discretion to defer the dismissal of Plaintiff's case under Rule 2-507(e). See id. at 935 ("When a party seeks dismissal of an action under Rule 2-507 . . . ...