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New v. Borg-Warner Corporation

United States District Court, W.D. Missouri, Western Division

October 3, 2014

JOHN NEW, and BETH NEW, Plaintiffs,
BORG-WARNER CORPORATION, et al., Defendants.


GREG KAYS, District Judge.

This case involves asbestos-related injuries. Plaintiffs John and Beth New claim that John New contracted lung cancer after being exposed to asbestos while working at various automobile part and repair businesses. Plaintiffs[1] filed a four-count lawsuit in Missouri state court against the various defendants that supplied the products that allegedly caused his injuries. Defendant Ford Motor Company removed the case to this Court, alleging diversity jurisdiction (Doc. 1).

Now before the Court is Defendant Navistar Inc.'s ("Navistar")[2] motion to dismiss for insufficient service of process (Doc. 82). Finding that Plaintiffs failed to serve Navistar within the120-day time limit imposed under Federal Rule of Civil Procedure 4(m) and that they have failed to show either "good cause" or "excusable neglect" for their untimely service, the Court GRANTS Navistar's motion.

Procedural Background

Only the following procedural facts are relevant for purposes of this order. In December 2011, John New was diagnosed with inoperable lung cancer. As a longtime automobile part clerk and automobile repair mechanic, he suspected that his disease might have arisen from his potential exposure to asbestos-containing products in these positions. He enlisted the assistance of counsel.

On May 31, 2012, Plaintiffs filed a lawsuit against various manufacturers of products that John New repeatedly encountered during his career. Navistar was among the litany of defendants named in the initial complaint. Less than a month after filing their complaint in state court, Plaintiffs retained Sentinel Private Investigations & Nationwide Process Service ("Sentinel") to serve all defendants named in the action. On August 9, 2012, Sentinel employee Scott McKenna ("McKenna") informed Plaintiffs that he properly served all defendants prior to July 17, 2012. Despite McKenna's assurances of service, Plaintiffs never received proofs of service for a number of defendants, including Navistar. From early August 2012 until December 2012, Plaintiffs sent numerous emails to McKenna requesting the missing proofs of service, but McKenna never provided them.

McKenna's failures led Plaintiffs to request alias summonses from the state court in late February 2013. The state court clerk's office informed Plaintiffs that it must enlist a local counsel licensed in Missouri to request summonses. In March 2013, Plaintiffs enlisted the services of local counsel ("Local Counsel") to procure the alias summonses. Local Counsel failed to request the summonses, but Plaintiffs never followed up with them.

On June 10, 2013, Plaintiffs filed an amended complaint that again named Navistar as a Defendant in the action. On July 10, 2013, Defendant Ford Motor Company removed to this Court. After removal, numerous defendants named in the lawsuit entered an appearance and began litigating, but Navistar and other defendants did not. The latter's inactivity prompted the Court to request a status report from Plaintiffs on November 19, 2013, on whether Plaintiffs properly served the unrepresented defendants. Plaintiffs responded with a short letter stating, among other things, that it did not possess a proof of service for Navistar. Finding this status report insufficient, the Court requested a second status report with the dates of service upon all defendants. In response, Plaintiffs filed a report stating that it never served Navistar in state or federal court, but Plaintiffs provided no explanation for its failure to do so.

On February 27, 2014, a summons was issued for Navistar and other unrepresented defendants. The following day the Court dismissed Navistar without prejudice, holding that notwithstanding the issuance of summons, Plaintiffs failed to serve Navistar within the allotted time and failed to demonstrate good cause for the lack of service. Plaintiffs completed service upon Navistar on March 4, 2014, and Navistar then entered an appearance in the case requesting an extension to file an answer. The Court then withdrew the dismissal of Navistar and allowed it to file an answer out of time. On the same day it filed its answer, Navistar also filed the instant motion requesting dismissal based upon Plaintiffs' untimely service.


A motion under Rule 12(b)(5) challenges the sufficiency of service of process on the movant. Fed.R.Civ.P. 12(b)(5). Once a movant raises a plausible challenge to service of process, the plaintiff shoulders the ultimate burden of making a prima facie showing that service complied with the governing law. See Northrup King Co. v. Compania Productora Semillas Algodoneras Selectas, S.A., 51 F.3d 1383, 1387 (8th Cir. 1995). Where, as here, a plaintiff attempts to serve a defendant for the first time following removal to federal court, federal procedural law governs the sufficiency of service. Norsyn, Inc. v. Desai, 351 F.3d 825, 829 n.4 (8th Cir. 2003) (citing Fed.R.Civ.P. 81(c); 28 U.S.C. ยง 1448). Thus, for purposes of this motion, Plaintiffs must demonstrate that their service upon Navistar comports with the Federal Rules of Civil Procedure.


Navistar solely challenges the timeliness of service. Under the Federal Rules of Civil Procedure, a plaintiff has 120 days from the date of removal to serve a previously unserved defendant. See Fed.R.Civ.P. 4(m) (requiring a plaintiff to serve a defendant within 120 days of filing an action in federal court); Cardenas v. City of Chicago, 646 F.3d 1001, 1004 (7th Cir. 2011) (holding that the 120-day period under Rule 4(m) also applies to cases in which the defendant removed to federal court). If the plaintiff fails to serve the defendant within the 120day period but demonstrates "good cause" for his failure, then the district must grant the plaintiff a reasonable extension to effect service. Kurka v. Iowa Cnty., Iowa, 628 F.3d 953, 957 (8th Cir. ...

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