Civil Practice – Service of Process – Extension Motion – Attorneys – No Good Cause

Clyburn v. Champagne (Lawyers Weekly No. 002-166-12, 16 pp.) (Timothy M. Cain, J.) 6:10-cv-01925; D.S.C.

Holding: Even though, after his suspension from the practice of law was lifted, counsel never received plaintiff’s file, he was still able to print a copy of the summons and complaint for delivery to his process server. However, no motion for an extension of time to serve process was filed prior to the expiration of the additional 30-day time period granted by this court’s July 26, 2011 order.

While the court is not unsympathetic to counsel’s personal and professional difficulties, the court is unable to find that good cause exists to extend the time for service of process beyond the period set out in the July 26, 2011 order.

Defendants’ motion to dismiss for insufficient service of process is granted.

Assuming the court has the discretion, in the absence of good cause, to grant an additional extension of time for service beyond that which was granted by the July 26, 2011 order, the court finds that such an extension is not warranted.

It is questionable whether or not the plaintiff ever desired to prosecute this case. Plaintiff petitioned to close the estate of her decedent months before this case was filed, representing that no litigation was pending. By the time the complaint in this action was filed, the estate had been closed for more than six months; arguably, the plaintiff had no standing to file the claim in the first place.

Although a dismissal may place the plaintiff’s claim outside the applicable statute of limitations, the plaintiff has provided no reasoned basis for the court to exercise discretion to extend the time for service beyond the deadline set in the July 26, 2011 order. Parties are accountable for the mistakes of their counsel. Assuming the plaintiff did, at some point in time, desire to pursue a claim against the defendants, she voluntarily chose her attorney and cannot now avoid the consequences of the acts or omissions of her freely selected agent.

Dismissed without prejudice.