Liberty Mutual v. Angelo ( 2019 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION LIBERTY MUTUAL FIRE INSURANCE CO., et al., Plaintiffs, Case No. 19-12051 v. Hon. George Caram Steeh MICHAEL ANGELO ORTHOPEDIC, P.C., et al., Defendants. ___________________________/ ORDER GRANTING MOTION FOR ISSUANCE OF SUMMONS (ECF No. 26) Plaintiffs seek the issuance of a new summons for Defendants Chitra Sinha and Mercyland Health Services. Plaintiffs state that although there is a waiver of service on the docket attributed to Mercyland, it was signed by “Meds Direct,” not Mercyland. Sinha also returned a waiver of service, but did not respond to the initial complaint. Plaintiffs filed an amended complaint on October 21, 2019, and seek issuance of a new summons so that Sinha and Mercyland may be properly served with the First Amended Complaint. Federal Rule of Civil Procedure 4(m) provides: If a defendant is not served within 90 days after the complaint is filed, the court . . . 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 for service for an appropriate period. Id. (emphasis added). The Advisory Committee notes provide that this section “authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown.” Id. (Advisory Committee Notes to 1993 Amendment). See also Slenzka v. Landstar Ranger, Inc., 204 F.R.D. 322, 325-26 (E.D. Mich. 2001) (“[G]ood cause no longer stands as an absolute prerequisite to extending the time for obtaining proper service of process.”) (citing cases). Although Plaintiffs have not articulated good cause for failing to effect service within the 90-day time period, the court may extend the time for service rather than dismissing the action without prejudice. Under the circumstances presented here, an extension of time is preferable to dismissal. Accordingly, the court will GRANT Plaintiffs’ motion for issuance of a summons (ECF No. 26) and extend the time for service of the summons and complaint for 45 days from the date of this order. SO ORDERED. Dated: November 13, 2019 s/George Caram Steeh GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE CERTIFICATE OF SERVICE Copies of this Order were served upon attorneys of record on November 13, 2019, by electronic and/or ordinary mail. s/Marcia Beauchemin Deputy Clerk