United States District Court, D. Minnesota
Noah J. McCourt, Plaintiff,
Carver County, Defendant.
Padraigin Browne, Esq. and Browne Law LLC, counsel for
Timothy A. Sullivan, Esq. and Ratwik, Roszak & Maloney,
PA, MN 55402, counsel for defendant.
S. Doty, Judge United States District Court
matter is before the court upon defendant Carver County's
motion to dismiss for failure to effect service. Based on a
review of the file, record, and proceedings herein, and for
the following reasons, the court grants the motion and
dismisses the case without prejudice.
discrimination claim arises out of plaintiff Noah
McCourt's unsuccessful attempts to use Carver
County's website allegedly due to his various
disabilities. McCourt filed suit, pro se, on September 28,
2018, and also filed an application to proceed in forma
pauperis. On October 17, 2018, counsel made an appearance on
McCourt's behalf. Soon thereafter, counsel for Carver
County made an appearance despite not yet having been served
October 25, the court granted McCourt's application to
proceed in forma pauperis, which enabled McCourt to
effectuate service through the U.S. Marshals Service. On
December 11, McCourt notified the magistrate judge assigned
to this matter that the parties would proceed without
burdening the U.S. Marshals and requested that the court
order the clerk's office to issue a summons. The court
did so and the clerk's office issued a summons on
April 5, 2019, nearly four months later, the magistrate judge
issued an order to show cause given that the summons had not
been returned executed and Carver County had yet to respond
the complaint. The magistrate judge ordered McCourt's
counsel to: (1) notify defendant that it must respond to the
complaint immediately or submit a stipulation for an
extension of time to respond to the complaint within ten days
of the date of the order; (2) file the notice on CM/ECF; and
(3) file for the entry of default within twenty days of the
date of the order if no response to the complaint was
received within ten days of service of the order. ECF No. 12
at 1-2. The magistrate judge further ordered McCourt to
advise the court in writing of “any good cause to the
contrary.” Id. at 2. Finally, the magistrate
judge advised McCourt that “[f]ailure to comply with
[the] Order may result in dismissal of this action for
failure to prosecute.” Id.
same day, Carver County notified the court that it had not
yet been served with process in the case and that dismissal
was therefore warranted under Fed.R.Civ.P. 4(m). ECF No. 13.
On April 12, counsel for McCourt contacted opposing counsel
and requested a waiver of service. Sullivan Aff. ¶ 3,
Ex. A. Counsel for Carver County was not willing to commit to
doing so given that service was no longer timely.
for McCourt then notified the magistrate judge that
“due to an unintentional error, ” she had failed
to timely send the waiver of service form to defense counsel.
ECF No. 14. Carver County now moves to dismiss for failure to
timely effect service.
effective service or waiver of process, the court lacks
personal jurisdiction over a defendant. See Printed Media
Servs., Inc. v. Solna Web, Inc., 11 F.3d 838, 843 (8th
Cir. 1993). A plaintiff must make a prima facie showing that
the court has personal jurisdiction over the defendants.
See Digi-Tel Holdings, Inc. v. Proteq Telecomms. (PTE),
Ltd., 89 F.3d 519, 522 (8th Cir. 1996). When considering
whether personal jurisdiction exists, the court views the
evidence in the light most favorable to the plaintiff and may
consider matters outside the pleadings. Id.;
see Dever v. Hentzen Coatings, Inc., 380
F.3d 1070, 1072-73 (8th Cir. 2004).
“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.” Fed.R.Civ.P. 4(m). Here,
McCourt failed to serve Carver County within the 90-day time
period prescribed by the rule.
plaintiff shows good cause for the failure, however,
“the court must extend the time for service for an
appropriate period.” Id. Here, McCourt does
not explain his failure to timely serve Carver County, but
merely states that it was due to “unintentional
error.” Mere inadvertence, however, does not constitute
good cause. See Potocnik v. Anoka Cty., No. 13-1103,
slip op. (D. Minn. Mar. 26, 2014); Salow v. Circus-Circus