United States District Court, E.D. Missouri, Southeastern Division
WILLIAM R. WELCH, Plaintiff,
BMAJ CORPORATION, Defendant.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
filed this lawsuit for injuries sustained in a car accident.
The defendant has moved to dismiss (#20). The matter is fully
briefed and ripe for disposition. For the reasons explained
below, the Court will deny the motion.
alleges that on February 10, 2011, he was parked in Pilot
Travel Station parking lot when a truck driven by Ivan
Serebryanskiy collided with plaintiff's vehicle. The
truck driven by Serebryanskiy was owned by defendant BMAJ
Corporation. Plaintiff filed this lawsuit against both
Serebryanskiy and BMAJ in Missouri state court on February 8,
2016-just days before Missouri's five-year statute of
limitations expired. Plaintiff did not serve defendant BMAJ
until August 14, 2018. BMAJ then removed this matter to this
Court pursuant to this Court's diversity jurisdiction.
Plaintiff never served Serebryanskiy, and this Court
dismissed that defendant for failure to serve process upon
BMAJ argues that plaintiff's case should be dismissed as
having been filed outside the statute of limitations or for
failure to prosecute.
defendant does not state under which of the Federal Rules of
Civil Procedure it seeks dismissal, the Court presumes Rule
12(b)(6) applies. The purpose of a Rule 12(b)(6) motion to
dismiss for failure to state a claim is to test the legal
sufficiency of a complaint so as to eliminate those actions
“which are fatally flawed in their legal premises and
deigned to fail, thereby sparing litigants the burden of
unnecessary pretrial and trial activity.” Young v.
City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001)
(citing Neitzke v. Williams, 490 U.S. 319, 326-27
(1989)). “To survive a motion to dismiss, a claim must
be facially plausible, meaning that the ‘factual
content. . . allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.'” Cole v. Homier Dist. Co., Inc.,
599 F.3d 856, 861 (8th Cir. 2010) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). The Court must
“accept the allegations contained in the complaint as
true and draw all reasonable inferences in favor of the
nonmoving party.” Id. (quoting Coons v.
Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005)).
parties appear to agree that, in this diversity case, the
substantive law of Missouri applies.
personal injury claim is subject to Missouri's five-year
statute of limitations. § 516.100 RSMo. After a
plaintiff files his lawsuit, he must serve process on the
defendants within 30 days; if process cannot be served, he
must return it to the court within 30 days with a statement
of the reason for failure to serve. Mo. Sup. Ct. R. 54.21. A
plaintiff may seek an extension of up to 90 days for service.
defendant argues that plaintiff's lawsuit should be
dismissed because he waited until days before the statute of
limitations expired before filing his lawsuit and then failed
to serve defendant for more than two years. Defendant argues
that the delay in service, which occurred seven years after
the accident, was prejudicial and that the case should be
dismissed pursuant to Missouri Supreme Court Rules 54.21 and
67.03 for failure to serve process and failure to prosecute.
relies on Boyle v. American Auto Service, Inc., 571
F.3d 734, 737 (8th Cir. 2009), which affirmed a district
court's dismissal under similar circumstances. The Eighth
Circuit held that Federal Rule of Civil Procedure 41(b)
applied rather than Missouri Supreme Court Rule 67.03. The
court observed that the Boyle plaintiff
“did not comply with Missouri law” by
failing to serve the defendant within 30 days. Id.
(emphasis in original). Instead, Boyle waited four years to
serve process, and the court noted that he failed to provide
any justification for the delay. The court held that because
Boyle “had failed to come forth with an excuse for the
delay, we need not address whether [defendant] suffered
actual prejudice, ” and the court affirmed the
dismissal of plaintiffs case. Defendant here urges this Court
to follow similar logic and do the same.
in Boyle, however, plaintiff here explains that he
attempted to serve defendant BMAJ several times. As the
Boyle court observed, and as defendant admits, due
diligence is not a strict requirement with respect to service
of process. Id.; see also Ostermueller v.
Potter, 868 S.W.2d 110, 111 (Mo. banc 1993).
Plaintiff states that he attempted to serve defendant four
times in February 2016, but he eventually determined that the
address listed for defendant's registered agent was not
correct. Plaintiff states that defendant administratively
dissolved and reappeared at least twice, and he cites to
searches performed on the Illinois Secretary of State's
website conducted, for example, in January 2017, supporting
his efforts at finding defendant. Finally, plaintiff obtained
a new address for defendant and served defendant on August
Court disagrees with defendant that plaintiff “failed
to prosecute” his case when plaintiff's attempts at
serving process on defendant were thwarted by defendant
itself. As for defendant's argument that plaintiff waited
too long to file the petition in the first place, defendant
does not deny that its insurance company was in negotiations
with plaintiff's counsel during the years between the
accident and the eventual lawsuit. Thus, defendant surely had
knowledge of the possibility of a lawsuit. Plaintiff will not
be punished for his attempts to settle this matter out of
court when he in fact filed his petition within the statute
of limitations and thereafter diligently attempted to serve