Davis v. Kidd

• Decision Date: 18 November 1996
• Docket Number: No. 23255,23255
• Citation: 198 W.Va. 205,479 S.E.2d 866
• Court: West Virginia Supreme Court
• Parties: Russell DAVIS and Juanita Davis, Husband and Wife, Plaintiffs Below, Appellants, v. Jane A. KIDD, Defendant Below, Appellee.

Page 866

479 S.E.2d 866

198 W.Va. 205

Russell DAVIS and Juanita Davis, Husband and Wife Plaintiffs Below, Appellants, v. Jane A. KIDD, Defendant Below, Appellee.

No. 23255.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 11, 1996.

Decided Nov. 18, 1996.

Syllabus by the Court

"Dismissal under Rule 4(l) of the West Virginia Rules of Civil Procedure is mandatory in a case in which good cause for the lack of service is not shown, and a plaintiff whose case is subject to dismissal for noncompliance with Rule 4(l) has two options to avoid the consequences of the dismissal: (1) To timely show good cause for not having effected service of the summons and complaint, or (2) to refile the action before any time defenses arise and timely effect service under the new complaint." Syl. pt. 3, State ex rel. Charleston Area Medical Center v. Kaufman, 197 W.Va. 282, 475 S.E.2d 374 (1996).

James M. Casey, Point Pleasant, for Appellants.

John E. Triplett, Jr., Theisen, Brock, Frye, Erb & Leeper, Marietta, OH, for Appellee.

PER CURIAM.

This action is before this Court ¹ upon appeal from the final order of the Circuit Court of Wood County, West Virginia, entered on March 10, 1995. Pursuant to that order, the circuit court dismissed the complaint of the appellants, Russell Davis and Juanita Davis, against the appellee, Jane A. Kidd, without prejudice. The circuit court dismissed the complaint pursuant to Rule 4(l) of the West Virginia Rules of Civil Procedure, concerning the 180-day requirement for service of the complaint in a civil action.

This Court has before it the petition for appeal, all matters of record and the briefs of counsel. For the reasons stated below, the final order of the circuit court is affirmed.

I

On May 11, 1991, an automobile accident occurred in Parkersburg, Wood County, West Virginia. The appellants' car was driven by Juanita Davis. Russell Davis was a passenger therein. According to the appellants, their automobile was negligently struck by an automobile driven by the appellee, resulting in personal injuries to the appellants. The appellee was a resident of the State of Ohio.

In June 1991, an attorney for the appellants began contact with State Farm Insurance Company, the appellee's insurance carrier. Thereafter, on December 24, 1992, an action was filed against the appellee concerning the accident. When the action was filed, the appellants' attorney made no request for service of process upon the appellee. Rather, the attorney for the appellants resumed his discussions with State Farm. As reflected in the correspondence included in the record, by April 1993 the appellants' attorney and State Farm were unable to reach an agreement in settlement of the action.

On May 7, 1993, the circuit clerk of Wood County was requested by the appellants' attorney to serve the appellee through the office of the West Virginia Secretary of State. ² On July 21, 1993, however, the Secretary of State's office notified the circuit clerk that no service could be completed because a forwarding order upon the appellee's mailing address, utilized by the federal post office, had expired.

Thereafter, the appellants obtained new counsel, and that counsel renewed settlement negotiations with State Farm and also hired an investigator to locate the whereabouts of the appellee for service of process in the action.

Nevertheless, on December 21, 1993, the office of the circuit clerk notified the appellants that the action was to be dismissed under Rule 4(l) of the Rules of Civil Procedure for failure of service of process. The appellants' attorney filed a response, however, noting, inter alia, the change in appellants' counsel, and the circuit judge directed the circuit clerk to maintain the action upon the docket.

On April 21, 1994, the circuit clerk issued a summons and a copy of the complaint at the request of the appellants' attorney for service upon the appellee. On April 28, 1994, the appellee was personally served with process in the action. It should be noted that the service on April 28, 1994, upon the appellee took place some 490 days after the filing of the complaint on December 24, 1992.

In May 1994, the appellee filed a motion to dismiss pursuant to Rule 4(l). As reflected in the final order of March 10, 1995, the circuit court granted the appellee's motion, and the complaint of the appellants was dismissed without prejudice. This appeal followed.

II

As stated above, the appellants' complaint was dismissed pursuant to Rule 4(l) of the West Virginia Rules of Civil Procedure. Rule 4(l) provides:

Summons: Time limit for service.--If service of the summons and complaint is not made upon a defendant within 180 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.

The federal counterpart of Rule 4(l) is Rule 4(m) of the Federal Rules of Civil Procedure. According to the official commentary to Rule 4(m), "it was thought advisable to put some kind of stated cap on the time for serving the summons."

Here, the appellants contend that they had good cause for not serving the summons and complaint within the 180-day period specified in Rule 4(l), and, therefore, the circuit court committed error in dismissing the complaint. Specifically, the appellants assert that they established good cause below for the delay of service by showing (1) that they had a change of counsel after the complaint was filed, (2) that they pursued settlement negotiations with the appellee's insurance carrier during the period of delay ³ and (3) that the appellants hired an investigator who ultimately determined the appellee's whereabouts for service of process. Moreover, the appellants assert that the appellee was not prejudiced by the delay of service.

The appellee, on the other hand, contends that the circuit court acted correctly in dismissing the complaint, inasmuch as the appellants failed to establish good cause to exempt them from the 180-day requirement and because prejudice to the appellee is not a proper consideration under Rule 4(l). In so contending, the appellee relies, primarily, upon the memorandum of opinion of the circuit court filed in support of the final order.

In its memorandum, the circuit court stated that a plaintiff, in establishing good cause to excuse late service, must set forth specific facts to show why service was not completed within the time period designated by the Rule. First, the circuit court, in the memorandum, indicated that, here, good cause was not shown by the change of appellants' counsel, since each of the two attorneys employed by the appellants allowed separate periods of more than 180 days to elapse prior to the ultimate service of the appellee on April 28, 1994. Second, the circuit court indicated that good cause was not shown with regard to the settlement negotiations with the appellee's insurance carrier because such negotiations are not relevant to a plaintiff's obligation to complete service within the time period provided in Rule 4(l), and, in any event, the settlement negotiations in this action had effectively terminated in April 1993, long before the appellee was served. Third, the circuit court, in the memorandum, stated that, although the hiring of an investigator to locate the appellee may have been "the beginning of establishing good cause" for the delay of service, no explanation was offered as to why it took the investigator "from the fall of 1993 until early April 1994" to locate the appellee, especially in view of the absence of an allegation that the appellee had attempted to evade service of process in this action. Finally, the circuit court stated that the allegation of lack of prejudice to the appellee, in spite of the delay of service, was not a relevant consideration under Rule 4(l), especially where, as here, the appellants failed to act diligently.

In response to the circuit court's reasoning, the appellants cite Gray v. Johnson, 165 W.Va. 156, 267 S.E.2d 615 (1980), a case involving dismissals under Rule 41(b) of the West Virginia Rules of Civil Procedure for failure to prosecute. ⁴ In Gray, a complaint for recovery for personal injuries was filed in the circuit court in June 1973, but service upon the nonresident defendant was not completed until August 1974. As the appellants herein emphasize, this Court stated, in Gray, that "a plaintiff must have an address for a nonresident motorist defendant; otherwise, [the] defendant is not available for service." 165 W.Va. at 161, 267 S.E.2d at 618. Nevertheless, also stating that a plaintiff must be diligent in attempting to serve the defendant, this Court remanded the action in Gray to the circuit court for a hearing to determine whether the plaintiff had been dilatory.

In the action now before us, the complaint was dismissed pursuant to Rule 4(l). Rule 41(b) was not involved. However, under both rules, the 180-day period specified in Rule 4(l) and the admonition concerning Rule 41(b) expressed in Gray, a plaintiff must exercise some diligence in serving a nonresident defendant. As stated in Stevens v. Saunders, 159 W.Va. 179, 187, 220 S.E.2d 887, 892 (1975): "[I]t is a well established rule that the plaintiff or his attorney bears the responsibility to see that an action is properly instituted [.]"

Recently, in State ex rel. Charleston Area Medical Center v. Kaufman, 197 W.Va. 282, 475 S.E.2d 374 (1996), this Court considered the dismissal of an action under Rule 4(l) for a 370-day delay in serving the defendant with process. Although the circuit court, in Charleston Area Medical Center, reinstated the action, this Court prohibited further proceedings therein, "unless the plaintiff ... is properly found [by the circuit court] to have shown good...