United States District Court, D. Maryland
Xinis United States District Judge
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
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
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
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.
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.
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.
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.
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.
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.
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.
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. 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.
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