Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00617-LTB-BNB

Document 28-5

Filed 06/23/2005

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PolyRock Technologies, LLC, v. General Steel Domestic Sales, LLC, et al.

EXHIBIT 4 to P A N IFSO P STO T C R A N L I TF ' P O II N O E T I D F N A T ' TO T D S S P R U N T F D R CV E E D N S MO I N O IMIS U S A T O E . . I . P. 41(b)

EDWARD KRAEMER & SONS, INC. v. CITY OF KANSAS CITY, No. Civ. A. 94-2215, 1994 WL 728214 (D. Kan. Dec. 13, 1994)

EXHIBIT 4 04-cv-617-LTB-BNB

Case 1:04-cv-00617-LTB-BNB

Document 28-5

Filed 06/23/2005

Page 2 of 3

Not Reported in F.Supp. 1994 WL 728214 (D.Kan.) (Cite as: 1994 WL 728214 (D.Kan.))

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Motions, Pleadings and Filings Only the Westlaw citation is currently available.

United States District Court, D. Kansas. EDWARD KRAEMER & SONS, INC., Plaintiff, v. The CITY OF KANSAS CITY, Defendant. Civ. A. No. 94-2215. Dec. 13, 1994. Richard W. Miller, Stephen R. Miller, Weston A. Sechtem, Miller Law Firm, P.C., Kansas City, MO, for plaintiff. Mary A. Kancel, City of Kansas City, Kansas--Legal Dept., Kansas City, KS, for defendant. MEMORANDUM AND ORDER VAN BEBBER, District Judge. *1 This matter is before the court on Defendant's Motion to Dismiss (Doc. 3) for failure of the plaintiff to obtain service of process on the City within the statute of limitations. The defendant asserts two bases for dismissal. First, defendant argues that the case should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) because the claims are barred by the applicable statute of limitations. In the alternative, defendant requests dismissal pursuant to Fed.R.Civ.P. 12(b)(5) for failure to effect service within 120 days of filing the complaint. For the reasons set forth below, defendant's motion will be denied. Statute of Limitations In a diversity action, the state statute of limitations controls a state law claim. Burnett v. Perry Mfg. Inc., 151 F.R.D. 398, 400 (D.Kan.1993). The statute of limitations controlling breaches of a written contract in Kansas is Kan.Stat.Ann. § 60-511(1) (1976), providing that actions shall be brought within five years. The City argues that the statute of limitations began to run on September 7, 1988, when the construction project at issue here was complete. The Kansas Court of Appeals has indicated, however, that in the case of construction projects, the plaintiff's cause of action does not accrue until the project is

completed, demand for payment has been made, and that demand has been rejected. Kraemer & Sons, Inc. v. Overland Park, 19 Kan.App.2d 1087, 880 P.2d 789, 793 (1994). Under that standard, the date triggering the running of the statute of limitations would be July 27, 1992 when the Kansas Department of Transportation (KDOT), as agent for the City, first denied the plaintiff's claim. The plaintiff filed suit well within the required timeframe. [FN1] Service of Process Defendant also seeks dismissal under Federal Rule of Civil Procedure 12(b)(5) for failure of service of process. The complaint in the instant action was filed on May 31, 1994. Service was not effected until October 4, 1994, which is 126 days after the complaint was filed. Federal Rule of Civil Procedure 4(m) directs service within 120 days of the filing of the complaint. However, the amended rule no longer requires dismissal for failure to effect service within the prescribed 120 days. Rule 4(m) of the Federal Rules of Civil Procedure provides in part: Time Limit for Service. 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) (emphasis added). The court has discretion to determine whether dismissal is appropriate. In re Chambers Development Securities Litigation, 848 F.Supp. 602, 628 (W.D.Pa.1994). The Advisory Committee Notes to the 1993 amendment to Rule 4(m) state: *2 The new subdivision [ (m) ] explicitly provides that the court shall allow additional time if there is good cause for the plaintiff's failure to effect service in the prescribed 120 days, and authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown. The rules are to be "construed and administered to secure the just, speedy, and inexpensive determination of every action." Fed.R.Civ.P. 1 (as amended effective December 1, 1993).

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Case 1:04-cv-00617-LTB-BNB

Document 28-5

Filed 06/23/2005

Page 3 of 3

Not Reported in F.Supp. 1994 WL 728214 (D.Kan.) (Cite as: 1994 WL 728214 (D.Kan.))

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The amended Rule 4(m) applies to the instant case. I acknowledge that the plaintiff's delay in filing service does not appear to be the kind of error that would amount to "good cause" under Rule 4(m) or its predecessor, Rule 4(j). Greene v. United States, 149 F.R.D. 206, 208 (D.Kan.1993). However, under amended Rule 4(m) the court may consider practicalities in exercising discretion to determine whether to dismiss. Dismissal in the instant case would be pointless. It will not bar plaintiff's claim, but would simply require plaintiff to refile and reserve defendant. Defendant does not claim that any prejudice will result from the delayed service. Furthermore, the City had notice of the instant action as early as August 8, 1994 when the plaintiff served upon the City's agent, KDOT, a motion to dismiss, or in the alternative, consolidate the present action with another initiated by KDOT. Under the circumstances, the court determines that service was effected within a reasonable time. IT IS, THEREFORE, BY THE COURT ORDERED that Defendant's Motion to Dismiss (Doc. 3) is denied. Copies of this order shall be mailed to counsel of record for the parties. IT IS SO ORDERED. FN1. In view of this finding, the court will not address the merits of plaintiff's alternative argument that the defendant is estopped from invoking the statute of limitations. 1994 WL 728214 (D.Kan.) Motions, Pleadings and Filings (Back to top) · 2:94CV02215 (May. 31, 1994) END OF DOCUMENT (Docket)

© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.