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Clayton v. Islas Transportation, LLC

United States District Court, D. Maryland

October 1, 2019

GEORGE CLAYTON, Plaintiff,
v.
ISLAS TRANSPORTATION, LLC, Defendant.

          MEMORANDUM OPINION

          Paula Xinis United States District Judge

         Pending before the Court is Plaintiff George Clayton's second motion for extension of time to serve the Complaint on Defendant, Islas Transportation (Islas). ECF No. 17. The motion is fully briefed, and no hearing is necessary. See Loc. R. 105.6. For the following reasons, the Court denies the motion and dismisses the Complaint without prejudice.

         I. Background

         This case arises from a car accident between Plaintiff George Clayton and an employee of Islas that occurred on December 21, 2015. ECF No. 1 ¶¶ 6, 8. Clayton filed his Complaint on December 21, 2018, three years later, and ostensibly on the last day of the limitations period. ECF No. 1 ¶ 5. See Youmans v. Douron, Inc., 211 Md.App. 274, 300 (2013). Counsel, however, never presented the summons for the Clerk's signature and issuance, as required by Rule 4 of the Federal Rules of Civil Procedure.[1]

         Since the filing of the Complaint, Clayton's counsel repeatedly missed a series of critical deadlines with this Court and has ignored companion Court orders. See, e.g., ECF No. 5 (order by Magistrate Judge Gina L. Simms directing Plaintiff to show cause for failure to comply with previous court order); ECF No. 8 (show cause hearing before the Honorable Paul W. Grimm, in which Clayton and his counsel failed to appear).

         Most pertinent to this opinion, on June 3, 2019, this Court notified Clayton's counsel that pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, Clayton risked dismissal of the case for failure to serve timely the Complaint on Islas. Accordingly, the Court ordered Clayton to show good cause why the case should not be dismissed without prejudice pursuant to Rule 4(m). ECF No. 9.

         Clayton responded, urging the Court to extend the service time by thirty days because counsel's law firm email had been hacked, resulting in missed deadlines. ECF No. 10. Clayton further averred that his process server had attempted to serve the Complaint on Islas' resident agent several times to no avail. Id. Clayton's counsel attached an affidavit from the process server reflecting the dates, times, and locations of attempted service. Id. Because the affidavit reflected some effort at attempting service, the Court granted the motion, extending the time by which to serve the Complaint until July 18, 2019. ECF No. 11.

         July 18, 2019 came and went. Still, this Court had not received any proof of the Complaint having been served. Nor did the Court hear from Clayton through his counsel. Accordingly, once again, the Court issued a show cause order as to why the Complaint should not be dismissed under Rule 4(m), this time directing counsel to appear in person for a show cause hearing set for August 29, 2019. ECF No. 12.

         On August 29, 2019, counsel failed to appear for the hearing. ECF No. 13. The Court called the case, and then, while still on record, telephoned counsel at the phone number on record with the Clerk's office. The Court left a message with counsel's answering service, informing counsel that he had missed yet another Court imposed order to appear and urged counsel to contact the Court. Id. Counsel never responded to this message.

         The Court also rescheduled the show-cause hearing for September 5, 2019, and, by written Order, warned counsel that failure to appear could result in the Court holding counsel in contempt for repeated violations of court orders. ECF No. 14. The Court not only filed this show cause order on the Court's electronic filing system (ECF), but also sent, via federal express, a hard copy of the order to the law firm address on record with the Clerk's office.[2]

         On September 5, 2019, counsel again failed to appear. Shortly before the hearing, the Court had obtained counsel's cell phone number from another member of the bench. At the hearing, the Court phoned counsel on his cell. Counsel answered the call and reported to the Court within the hour.

         Once the hearing reconvened, counsel reiterated the email hacking events previously described. Counsel also faulted his IT department for failing to file with the Clerk's office counsel's upDated:torney contact information. ECF No. 15. Next, counsel faulted his answering service for failing to relay the Court's previous message. Id. Counsel assured the Court that he would provide up-to-date contact information immediately to the Clerk's office.

         At the hearing, counsel also claimed to be totally unaware that he had failed to obtain a proper summons to serve with the Complaint. Shortly before the hearing, the courtroom deputy had discovered the failure of counsel to submit and receive a proper service copy of the summons.[3] For this transgression, counsel laid blame on the process server, but assured the Court that he (counsel) would immediately obtain a new summons from the Clerk's office so that counsel could perfect service. ECF No. 15. The Court granted counsel until September 12, 2019 to seek additional time to serve the Complaint and warned counsel that failure to establish good cause for extension would result in dismissal. The Court also urged counsel to secure a properly executed summons and to serve the Complaint.

         On September 12, 2019, Clayton, through counsel, moved for a sixty-day extension of the service deadline, and filed accompanying exhibits to the motion on September 13, 2019, one day after the deadline. The motion reflects that counsel never obtained a proper summons from the Clerk's office and made no subsequent attempts to serve the Complaint since his ...


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