Automated Summary
Key Facts
In this federal civil action (Case 1:25-cv-00090-KD-MU) in the U.S. District Court for the Southern District of Alabama, Plaintiffs Peter and Carla Falkner sued Ovum Medical, LLC and others alleging breach of contract and tortious interference. The Court is addressing a sua sponte review regarding Defendant Avona Fertility, Inc., which was added as a Defendant in the Second Amended Complaint filed February 3, 2025. Service of process was attempted via certified mail on that date, but no return of service appears in the state court docket. Under Rule 4(m), the 90-day service period runs from the date of removal, ending June 3, 2025. Since proof of service for Avona has not been filed and no good cause has been shown, the Court intends to dismiss the action without prejudice as to Avona unless the Falkners file proof of service or demonstrate good cause for failure to serve by November 5, 2025.
Issues
The court conducted a sua sponte review regarding whether Defendant Avona Fertility, Inc. was properly served within the 90-day period required by Fed. R. Civ. P. 4(m). The 90-day period runs from the date of removal (March 5, 2025), ending June 3, 2025. The court's docket does not contain a return of service for Avona, and the Court intends to dismiss the action without prejudice as to Avona unless proof of service is filed by November 5, 2025, or good cause is shown for failure to serve.
Holdings
The Court intends to dismiss this action without prejudice as to Defendant Avona Fertility, Inc. The 90-day service period for Avona ended June 3, 2025, and the Court's docket does not contain a return of service for Avona. Plaintiffs must file proof of service as to Avona or show good cause for their failure to serve Avona by November 5, 2025, or the dismissal will proceed.
Legal Principles
The court intends to dismiss the action without prejudice against Defendant Avona Fertility, Inc. because the 90-day service deadline under Federal Rule of Civil Procedure 4(m) has expired (June 3, 2025), as service was not completed within that timeframe following the removal of the case on March 5, 2025.
Precedent Name
- Williams v. City of Miami Beach
- Taylor v. Clark Equip. Co.
Cited Statute
- Federal Rules of Civil Procedure
- 28 U.S.C. § 1448 is the removal statute governing transferred cases
Judge Name
Kristi K. DuBose
Passage Text
- Rule 81(c) of the Federal Rules of Civil Procedure states that the federal rules apply to a civil action after it is removed from a state court. Rule 4(m) states that 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.
- The 90-day period ended June 3, 2025. This Court's docket does not contain a return of service for Avona. Accordingly, this Order shall serve as notice to the Falkners that the Court intends to dismiss this action without prejudice as to Avona, unless the Falkners, on or before November 5, 2025, file proof of service as to Avona, or show good cause for their failure to serve Avona such that the Court must grant an extension.
- For purposes of removed actions, the 90-day period runs from the date of removal. Courts have consistently held that the 90-day Rule 4(m) period runs from the date of removal, not the date the plaintiff filed the petition in state court. Additionally, S.D. Ala. Civ. LR, Rule 41(a) explains that whenever the Plaintiff has not completed service of process within the time required by Fed. R. Civ. P. 4(m), the Court upon notice may dismiss the action in accordance with Fed. R. Civ. P. 4(m).