United States District Court, W.D. Washington, Tacoma
ORDER ON DEFENDANT EMPLOYERS INSURANCE COMPANY OF
WAUSAU'S MOTION TO DISMISS COMPLAINT FOR DECLARATORY
J. BRYAN United States District Judge
MATTER comes before the Court on Defendant Employers
Insurance Company of Wausau's Motion to Dismiss Complaint
for Declaratory Judgment. Dkt. 21. The Court has considered
the motion, Plaintiff USNR, LLC's Response, Defendant
Wausau's Reply, and the remainder of the file herein.
Dkts. 24, 25.
Wausau seeks dismissal without prejudice on two grounds.
First, Defendant Wausau seeks dismissal for insufficient
service of process under Fed.R.Civ.P. 12(b)(5), on the basis
that Plaintiff USNR did not serve the Summons and Complaint
on Defendant Wausau within 90 days of filing, as required by
Fed.R.Civ.P. 4(m). Instead, Defendant Wausau opines,
Plaintiff USNR first attempted service of process on January
18, 2017, a date 96 days after filing. Because Plaintiff USNR
attempted service of process through the Washington Office of
the Insurance Commissioner (WOIC), which further delayed the
process, Defendant Wausau was not served any pleadings until
March 20, 2017. Dkt. 21 at 7-10. Since the filing of
Defendant Wausau's motion, Plaintiff USNR has apparently
served on Defendant Wausau an amended complaint. Defendant
Wausau objects to the timeliness of the service and says that
the service makes it unclear when responsive pleadings are
due. Dkt. 25 at 3.
Defendant Wausau seeks dismissal for insufficient process
under Fed.R.Civ.P. 12(b)(4) on the basis that the Summons
does not adhere to two requirements of Fed.R.Civ.P. 4(a): (1)
the Summons is directed to a person, “Susan E. Stead,
agent for Employers of Insurance of Wausau, ” rather
than “directed to the defendant”; and (2) the
Summons contains a blank space where it should contain the
name and address of Plaintiff USNR's attorney. Dkt. 21 at
seeking dismissal for insufficient service of process under
Fed.R.Civ.P. 12(b)(5) and insufficient process under
Fed.R.Civ.P. 12(b)(4), the motion also invokes Fed.R.Civ.P.
12(b)(2) under the theory that this Court would lack personal
jurisdiction over defendants who have not been personally
served. Dkt. 25 at ¶ 4. See Dkt. 21 at 1.
USNR concedes that it “lacks a legally recognized
excuse for its neglect” in timely serving Defendant
Wausau, but nonetheless seeks more time to complete service
of process. Dkt. 24 at 2. Regarding the Fed.R.Civ.P. 4(a)
errors identified with the Summons, Plaintiff USNR
acknowledges the errors, but requests that the Court quash
the pleadings, rather than dismiss them.
Insufficient service of process under Fed.R.Civ.P. 12(b)(5):
untimeliness under Fed.R.Civ.P. 4(m).
Civ. P. 12(b)(5) allows defendants to seek dismissal for
insufficient service of process. Service of process may be
insufficient where it is untimely. “The plaintiff is
responsible for having the summons and complaint served
within the time allowed by Rule 4(m).” Fed.R.Civ.P.
4(c)(1). Fed.R.Civ.P. 4(m) provides:
If a defendant is not served within 90 days after the
complaint is filed, the court - on motion or on its own after
notice to the plaintiff - must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows
good cause for the failure, the court must extend the time
Id. (emphasis added).
4(m) explicitly permits a district court to grant an
extension of time to serve the complaint after [the]
120-day period.” Mann v. Am.
Airlines, 324 F.3d 1088, 1090 (9th Cir.
2003). The rule permits an extension “even in the
absence of good cause, ” because the 90 days for
service “operates not as an outer limit subject to
reduction, but as an irreducible allowance.” Efaw
v. Williams, 473 F.3d 1038, 1040 (9th Cir.
2007), quoting Henderson v. United States, 517 U.S.
654, 661 (1996) (internal quotations omitted). In exercising
their discretion, courts may consider factors, such as the
prejudice to the defendant, actual notice of the lawsuit, and
length or reason for delay. Id. 473 F.3d at 1041.
See also, In re Sheehan, 253 F.3d 507, 513
(9th Cir. 2001) (“We find it unnecessary . .
. to articulate a specific test that a court must
neither one of Plaintiff USNR's attempts at service of
process fell within the 90 days prescribed by Fed.R.Civ.P.
4(m), the issue before the Court is the appropriate remedy
for the insufficient service of process. Defendant Wausau
acknowledges that it has actual notice of the lawsuit.
Defendant has not made a strong showing that extending the
time for service, rather than dismissing the case without
prejudice, would cause prejudice, other than to point to (1)
the costs associated with the filing of this motion and (2)
the lack of clarity about its responsive pleadings due date.
However, there are also costs associated with re-filing the
case, and the responsive pleadings due date can easily be
clarified by fixing the answer deadline to a date certain.
Plaintiff USNR has not provided a legally justifiable excuse
for the delay, but importantly, it has not attempted to
manufacture one, and ...