Harrison v. Bornn, Civil Action No. 98-01 (STT) (D. V.I. 5/15/2001)
| Decision Date | 15 May 2001 |
| Docket Number | Civil Action No. 98-01 (STT) |
| Court | U.S. District Court — Virgin Islands |
| Parties | NORA M. HARRISON, Plaintiff, v. BORNN, BORNN & HANDY, f/d/b/a BORNN, BORNN, HANDY & RASHID, a partnership; ETHEL CARR HUNTER MITCHELL, ESQ.; EDITH L. BORNN, ESQ.; DAVID A. BORNN, ESQ.; VERONICA J. HANDY, ESQ.; and DOES 1 through 30, inclusive, Defendants. |
KARIN A. BENTZ, ESQ., St. Thomas, USVI, Attorney for Plaintiff.
RICHARD HUNTER, ESQ., Hunter Cole & Bennett, St. Croix, USVI, Attorney for Defendants Bornn, Bornn & Handy, Edith Bornn, David, Bornn, and Veronica Handy.
J. DARYL DODSON, ESQ., Moore & Dodson, St. Thomas, USVI, Attorney for Defendant Ethel Mitchell.
OPINION ON MOTIONS TO DISMISS AND FOR ENTRY OF DEFAULT
This legal malpractice case arises from Defendant Ethel Mitchell's alleged negligence in handling a personal injury action brought by Plaintiff in 1993 in the District Court of the Virgin Islands. Presently before the Court are (1) Mitchell's motion to dismiss the complaint for failure to effect timely service of process, and (2) Plaintiff's motion for entry of default against the individual partners of Defendant Bornn, Bornn & Handy, Mitchell's former law firm, for failure to answer the complaint.
In 1993, Nora Harrison retained Bornn, Bornn & Handy to represent her in a personal injury action in the District Court against Frenchman's Reef Beach Associates ("Frenchman's Reef"), a limited partnership. Mitchell, a lawyer affiliated with the Bornn, Bornn & Handy firm, had primary responsibility for Harrison's case. In January 1996, Frenchman's Reef moved to dismiss the complaint on the basis that there was not complete diversity between the parties. The motion to dismiss disclosed for the first time, Mitchell contends, that some Frenchman's Reef partners were, like Plaintiff, citizens of New York. By the time of the motion to dismiss, the limitations period for refiling the action in the Territorial Court had run. By order of April 12, 1996, the District Court dismissed the complaint for lack of subject matter jurisdiction. The Third Circuit affirmed that order on December 24, 1996. Frenchman's Reef thereafter sought and, on March 12, 1998, was awarded costs and sanctions against both Mitchell and Harrison totaling $ 44,488.
Displeased with Mitchell's representation, Harrison hired another attorney, Valerie Collanton, and on January 5, 1998, filed a complaint in District Court alleging legal malpractice. The lawsuit named Mitchell, the Bornn, Bornn & Handy law firm, and its individual partners as defendant parties. On February 17, 1998, Harrison filed an amended complaint against the same defendants. She contends that Defendants not only were negligent in failing to pursue her case in a proper forum, but also that they concealed information from her and otherwise failed to inform her about developments in the case.
Given the January 5 filing date of the original complaint, Plaintiff had until May 5, 1998, to perfect service of process on Defendants. See Fed. R. Civ. P. 4(m) ().
The Bornn, Bornn & Handy law firm, as well as its individual partners—David Bornn, Edith Bornn, and Veronica Handy—were timely served with the amended complaint in February. Dodson Aff. ¶ 5. The partnership answered the complaint on March 18, 1998, but the individual partners did not file answers. The partners have, however, responded to interrogatories and otherwise participated in the case.
For reasons that are still unclear, Collanton did not initiate service of process on Mitchell in February, when the other defendants were served. Dodson Aff. ¶ 5. At the time the complaint was filed, Mitchell was no longer practicing law in the Virgin Islands and had moved to Texas. Plaintiff had notice of this fact as early as May 1997, when Mitchell wrote Harrison a letter explaining her actions and listing a post office box in Arlington, Texas, as her return address. Mem. Opp. Mot. Dismiss Ex. D. Mitchell also contends that she left the address of her new residence—2932 Binkley Avenue No. 4, Dallas, Texas—with the Territorial and District Courts. Mitchell Aff. ¶¶ 5, 6. Additionally, Collanton was apprised of Mitchell's whereabout in April 1998 when she was copied on a letter, relating to the 1993 case, that contained Mitchell's Binkley Avenue address in Dallas as well as the address of her law office in Arlington. Mem. Supp. Mot. Dismiss Ex. A.
On April 16, 1998, Collanton requested that a summons for Mitchell be issued and engaged the services of a process server in Texas. Bentz Aff. Ex. E2. However, the server's report reflects that he did not make his first service attempt until the deadline day, May 5, when he found no one at home at the Dallas address. The server did not try again until May 19, when he again found no one home. Finally, on May 20, the server spoke to someone at the Dallas address who said Mitchell no longer lived there. Bentz Aff. Ex. E4. By this time, Mitchell had apparently moved to 5239 Villa Brook Lane in Arlington. Mitchell Aff. ¶ 7. Collanton received notice of this address in August 1998, when she was served with copies of Mitchell's responses to interrogatories in the 1993 litigation. Mem. Supp. Mot. Dismiss Ex. B. By August, however, Collanton was not pursuing the case, having stopped working shortly after her husband passed away in May. Mem. Opp. Mot. Dismiss Exs. F, G.
In October 1998, Harrison retained new counsel, Karin Bentz. Due to confusion over what had previously transpired in the case, Magistrate Judge Barnard on December 3, 1998, entered an order requiring Bentz to determine whether Mitchell had been served, and if not, whether and how to effect service. Mem. Opp. Mot. Dismiss Ex. H. On February 22, 1999, more than 400 days after the complaint was filed, Bentz moved for an extension of time to effect service.1 On March 24, 1999, Judge Barnard extended the deadline for service to June 30, 1999.
In the meantime, Mitchell had made two more moves: first to New York City, where she lived between September 1998 and March 1999, and then to Accra, Ghana, where she attended the Ghana School of Law. Mitchell Aff. ¶¶ 8, 9. In May 1999, Bentz learned of the New York move and made an unsuccessful attempt to serve process at the address there. In light of the continued failures to find Mitchell, Judge Barnard on June 18, 1999, authorized substituted service on Mitchell via publication in a Virgin Islands newspaper. Mitchell received word of the publication in July 1999, Mitchell Aff. ¶ 13, and filed the instant motion to dismiss on September 10, 1999.
Mitchell moves to dismiss the claims against her on the ground that Plaintiff failed to serve her with the complaint within the 120 days allotted under Federal Rule of Civil Procedure 4(m).
As amended in 1993, Rule 4(m) provides:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m) (1993) (emphasis added). Thus, the district court must first determine whether good cause for the failure to timely effect service exists. "If good cause is present, the district court must extend time for service and the inquiry is ended." Petrucci v. Bohringer & Ratzinger, GMBH, 46 F.3d 1298, 1305 (3d Cir. 1995). If good cause does not exist, the court retains discretion to either dismiss the case or extend time for service. Id. ().2
This case is unusual because Judge Barnard has already engaged in the Rule 4(m) analysis. In his order of March 24, 1999, after intimating that good cause for failure to serve likely did not exist, Barnard nonetheless exercised his discretion to extend the time for service. Barnard explained:
Upon review of the instant pleadings and the file, the Court will not dismiss the case against defendant Mitchell as this matter is still [sic] the early stages. Moreover the Court will not penalize plaintiff for prior counsel's oversight in failing to request an extension of time prior to the expiration of the 120 days in May of 1998. Lastly the Court would prefer to dispose of this case on the merits.
Order of March 24, 1999 (Barnard, J.). Because Judge Barnard has already ruled on the Rule 4(m) issue, the Court construes Mitchell's motion as an appeal of the order extending the deadline for service.
Under Federal Rule of Civil Procedure 72(a), a party must file any objections to a magistrate's order within ten days of being served with a copy of the order. Fed. R. Civ. P. 72(a). Thereafter, "a party may not . . . assign as error a defect in the magistrate judge's order to which objection was not timely made." Id. The requirement of a timely objection is of dubious applicability in this case, however, since Mitchell could neither be served with the magistrate's orders nor object to them until she found out about the lawsuit. Moreover, the record does not reflect that Mitchell was ever served with the March 24, 1999, order once she received notice of the lawsuit in July 1999, although she certainly learned of its existence at some point. In light of these circumstances, the Court will not deny relief for want of a timely objection.
However, the Court will deny Plaintiff's motion because it finds no error in...
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