46 F.3d 1298 (3rd Cir. 1995), 94-1425, Petrucelli v. Bohringer and Ratzinger

Docket Nº:94-1425.
Citation:46 F.3d 1298
Party Name:David PETRUCELLI; Tracy A. Petrucelli, Husband and Wife v. BOHRINGER AND RATZINGER, GMBH Ausdereitungsanlagen; Jake Diel Construction Machine, Inc.; Teco Electric and Machine Company, Ltd. v. EXCEL RECYCLING & MANUFACTURING, INC., Third-Party Defendant, David Petrucelli and Tracy A. Petrucelli, Appellants.
Case Date:February 01, 1995
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 1298

46 F.3d 1298 (3rd Cir. 1995)

David PETRUCELLI; Tracy A. Petrucelli, Husband and Wife

v.

BOHRINGER AND RATZINGER, GMBH Ausdereitungsanlagen; Jake

Diel Construction Machine, Inc.; Teco Electric

and Machine Company, Ltd.

v.

EXCEL RECYCLING & MANUFACTURING, INC., Third-Party Defendant,

David Petrucelli and Tracy A. Petrucelli, Appellants.

No. 94-1425.

United States Court of Appeals, Third Circuit

February 1, 1995

Argued Sept. 22, 1994.

Sur Petition for Rehearing Feb. 28, 1995.

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Page 1300

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John R. Vivian, Jr., Gus Milides, Michael A. Snover (argued), Law Offices of John R. Vivian, Jr., Easton, PA, for appellants David and Tracy A. Petrucelli.

Warren E. Voter, J. Michael Kunsch (argued), Sweeney, Sheehan & Spencer, Philadelphia, PA, for appellee Bohringer and Ratzinger, GMBH Ausdereitungsanlagen.

Christopher C. Fallon, Jr., Josh M. Greenbaum (argued), Cozen & O'Connor, Philadelphia, PA, for appellee Jake Diel Const. Machine, Inc.

Before: BECKER, COWEN and GARTH, Circuit Judges.

Page 1302

OPINION OF THE COURT

COWEN, Circuit Judge.

This appeal arises from an order dismissing a personal injury suit without prejudice after the plaintiff failed to serve a summons upon the defendant within 120 days of filing the complaint as required by Rule 4 of the Federal Rules of Civil Procedure. The issue of whether, subsequent to a recent rule change, Rule 4(m) permits a district court to extend time for service even absent a showing of good cause is one of first impression at the federal appellate level. We conclude that, under the former rule, the district court did not abuse its discretion in refusing to extend time beyond the 120 days within which service was to be effected after finding no good cause present. Nevertheless, because we conclude that the new rule affords a district judge greater discretion, we remand to the district court for reconsideration on this issue only. Additionally, we will affirm the order of the district court granting summary judgment in favor of one of the defendants. Finally, it was not error to deny plaintiff's motions for a default judgment and to compel discovery.

I.

  1. Factual Background

    Plaintiff David Petrucelli ("Petrucelli") 1 was employed by American Fuel Harvester in East Bangor, Pennsylvania, where he was involved in recycling demolition materials. The recycling process consisted of obtaining materials from demolished buildings, and dumping the material into an impact rotor crusher machine ("rotor crusher"). The rotor crusher chopped and pulverized the material into smaller pieces which were then discharged from the bottom of the rotor crusher. The material was discharged through a transition chute to a vibrating feeder, and then to a hopper on the discharge conveyor. All of the component parts of the recycling machine, including the rotor crusher, were ordered by American Fuel Harvester from defendant Jake Diel Construction Machinery, Inc. ("Jake Diel").

    Jake Diel designed and manufactured the recycling machine and later assembled it on the premises of American Fuel Harvester. Many of the component parts of the recycling machine, including the transition chute, the vibrating screen, the machine chassis, the control booth, and the discharge conveyor, were made by Jake Diel. Jake Diel bought for incorporation into the recycling machine other components, such as the rotor crusher made by defendant Bohringer & Ratzinger ("Bohringer"). Although the rotor crusher and the discharge conveyor were all part of the same recycling machine, there were three independent components between the rotor crusher and the discharge conveyor. From the recycling machine's control booth, most of the various conveyor belts could be individually turned on and off, but from that vantage point, most or all of the discharge conveyor could not be seen. Bohringer did not participate in the decisions regarding the design or the location of the control booth and its operating controls.

    On August 8, 1989, while working with the recycling machine, Petrucelli noticed that the conveyor was not functioning properly. One of his co-workers went to the control booth to turn off the machine. After the machine was turned off, Petrucelli attempted to dislodge some wire caught in the roller of the discharge conveyor of the recycling machine. While performing this task, one of his co-workers turned on the recycling machine. Petrucelli's left arm was torn off after being pulled into the conveyor mechanism.

  2. Procedural History

    Petrucelli filed a complaint on April 1, 1991, and thereafter an amended complaint in the United States District Court for the Eastern District of Pennsylvania. In the amended complaint, Petrucelli asserts claims for negligence, strict products liability, breach of warranty, misrepresentation, and punitive damages. Petrucelli enlisted the aid of Attorney Process Service ("APS") to assist in serving process upon the defendants. He informed APS that the nameplate on the

    Page 1303

    machinery indicated that Jake Diel was located in both Texas and Oklahoma. APS advised Petrucelli that "Jake Diehl (sic) Construction" could be served through the Secretary of State of Oklahoma, but that "Jake Diehl (sic) Construction and Machinery Co." was not subject to service in Texas (March 26, 1991 letter from APS; App. at 66.) because its corporate charter was revoked by the Secretary of State of Texas on November 1, 1988. Inexplicably, prior to sending the summons and complaint, Petrucelli never confirmed or otherwise verified with the Secretary of State of Oklahoma that Jake Diel was a corporation in good standing with the State of Oklahoma, capable of being served through the Secretary of State of that jurisdiction.

    On July 25, 1991, Petrucelli sent a copy of the summons and complaint and a copy of a Notice of Acknowledgment of Receipt of Summons and Complaint to the Secretary of State of Oklahoma, who received these documents on July 29, 1991. On March 19, 1992, the Secretary of State of Oklahoma issued a certificate of proof of service which stated that it had been served as the agent for "Jake Diehl (sic) Construction and Machinery Co." on August 5, 1991. The certificate of service also indicated that on August 7, 1991, the Secretary of State of Oklahoma sent the summons and complaint to an address in Hereford, Texas, via certified mail, return receipt requested, but that the letter had been returned undelivered on August 14, 1991. However, Petrucelli contends that in August of 1991, he communicated with the offices of the Secretary of State of Oklahoma by telephone, and was verbally assured by someone in that office that Jake Diel had been served via certified mail.

    Meanwhile, Bohringer impleaded Excel Recycling & Manufacturing, Inc. ("Excel") as a third-party defendant, believing that Jake Diel had legally changed its corporate name to Excel. 2 After Jake Diel failed to respond, Petrucelli, in May of 1992, moved for a default judgment against Jake Diel or alternatively to extend time for service. Both of these motions were denied, resulting in the dismissal of Jake Diel from these proceedings as a direct defendant. 3

    Defendant Bohringer subsequently moved for summary judgment. 4 Petrucelli opposed Bohringer's motion and filed a motion seeking to compel Bohringer: (1) to answer the interrogatories that Excel had served on Bohringer; and (2) to produce the documents that Excel had previously demanded of Bohringer. The district court granted summary judgment in favor of Bohringer and denied Petrucelli's motion.

    Petrucelli appeals the orders of the district court: (1) denying his motions for default judgment against Jake Diel or, alternatively, to extend the time for service on Jake Diel; (2) granting summary judgment in favor of defendant Bohringer; and (3) denying Petrucelli's motion to compel discovery from Bohringer. We will affirm the orders of the district court.

    II.

  3. Denial of Motion for Default Judgment

    Petrucelli argues that the district court erred by not granting his motion for a default judgment against Jake Diel. Assuming that proper service of process was effected on Jake Diel, we can reverse the district court only if we find that it abused its discretion in denying the motion for a default judgment. See Farzetta v. Turner & Newall, Ltd., 797 F.2d 151, 153 (3d Cir.1986). Insofar as this issue pertains to whether Jake Diel was properly served, our standard of review is plenary. Stranahan Gear Co. v.

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    NL Industries, Inc., 800 F.2d 53, 56 (3d Cir.1986). See also Grand Entertainment Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 481 (3d Cir.1993) ("We exercise plenary review over issues concerning the propriety of service under Federal Rule of Civil Procedure 4."). We note that if a default judgment had been entered when there had not been proper service, the judgment is, a fortiori, void, and should be vacated. Gold Kist, Inc. v. Laurinburg Oil Co., 756 F.2d 14, 19 (3d Cir.1985).

    Petrucelli filed the complaint on April 1, 1991. Pursuant to former Rule 4(j), the predecessor to Rule 4(m), of the Federal Rules of Civil Procedure, he had 120 days (until July 30, 1991) to serve the summons and complaint upon Jake Diel. 5 The return receipt from the mailing indicates that the Secretary of State of Oklahoma received the summons and complaint on July 29, 1991, just within the 120-day limit. Petrucelli contends that since he served Jake Diel's authorized agent, service was effective. However, as of November 1, 1988, Jake Diel was no longer a foreign corporation authorized to conduct business in Oklahoma. Because the Secretary of State of Oklahoma was no longer the authorized agent to accept service of process on behalf of Jake Diel, we conclude that serving the Secretary of State was ineffective as service on Jake...

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