On December 28, 2005, Plaintiff Lisa Sharp was involved in
an automobile accident. Just shy of three years later, Plaintiffs filed a
Complaint in the Circuit Court, and the Clerk issued a summons on December 22,
2008; but the Plaintiffs never served this summons. Four months later, on April
29, 2009, the Circuit Court issued a notice of contemplated dismissal for
failure to prosecute pursuant to MD. RULE 2-507. The Plaintiffs were given
thirty days to show good cause to defer the entry of dismissal.
Twenty-nine days into the thirty day response period,
Plaintiffs filed a Motion to Defer Dismissal, and the Circuit Court deferred
dismissal for ninety days. Because a summons issued in Maryland becomes dormant
after sixty days, pursuant to MD. RULE 2-113, the Court also issued a second
summons on July 2, 2009. That summons became dormant on September 5, 2009.
Plaintiffs served the dormant and defective summons on September 11, 2009. This
case was then removed to Cederal court on October 7, 2009.
State law governs the sufficiency of service and process in
this Federal court case. Honda filed this Motion to Dismiss, pursuant to MD.
RULE 2-507, which provides that "an action against any defendant who has not
been served . . . is subject to dismissal as to that defendant at the expiration
of 120 days from the issuance of original process directed to that defendant."
Judge Motz granted the Motion to Dismiss for three reasons.
First, Plaintiffs failed to offer a reasonable justification
for the delay in effecting service. The only reason Plaintiffs offered was the
need to investigate. Also, they failed to explain how they had been unable to
serve process, although they admitted being in communication with Honda while
"investigating."
Second, Plaintiffs' delay in effecting service was
significant. The original summons was issued over ten months before service,
although defective, was finally effected.
Finally, the delay prejudiced Honda. The Court found
prejudice simply from the delay in service. A specific showing of prejudice is
not required because Plaintiffs offered no explanation for their failure to
serve timely.
Thus, since the Plaintiffs offered no acceptable explanation
for their delay in service with both summons, the Court dismissed the action.
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