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WAGSHAL v. RIGLER

May 14, 1998

JEROME S. WAGSHAL, APPELLANT,
V.
DOUGLAS V. RIGLER AND JULIUS KAPLAN, APPELLEES.



APPEAL FROM THE SUPERIOR COURT, FREDERICK D. DORSEY, J. [711 A2d Page 113]

Before Terry, Steadman and Ruiz, Associate Judges.

The opinion of the court was delivered by: Steadman, Associate Judge:

Unlike its federal counterpart, Superior Court Civil Rule 4(m) requires that both service of process and the filing of proof of such service be accomplished within sixty days of the filing of every civil complaint. On April 28, 1995, appellant Jerome S. Wagshal, a retired attorney appearing pro se, filed suit against appellees Douglas V. Rigler and Julius Kaplan, also pro se attorneys. *fn1 Wagshal served process on Kaplan and Rigler on June 15 and June 22, 1995, respectively, within sixty days after the filing of the complaint. However, he did not file proof of service until July 5, 1995, eight days beyond the sixty-day period of Rule 4(m). *fn1

As a consequence of the failure to timely file proof of service, the Clerk of the Superior Court, pursuant to Rule 4(m), entered a dismissal of the complaint without prejudice on July 5, 1995. In fact, however, because the statute of limitations had run, this would in effect be a dismissal with prejudice assuming that Rigler and Kaplan raised that defense in a new action. Learning of the dismissal, Wagshal, two days later, filed a motion to vacate the dismissal under Rule 41(b), which provides in pertinent part:

Any order of dismissal entered sua sponte, including a dismissal for failure to effect service within the time prescribed in Rule 4(m), shall not take effect until fourteen (14) days after the date on which it is docketed and shall be vacated upon the granting of a motion filed by plaintiff within such 14 day period showing good cause why the case should not be dismissed. *fn2

The trial court "reluctantly" denied Wagshal's motion, ruling that his proffered explanations for failing to file timely proof of service did not demonstrate good cause. *fn3 [711 A2d Page 114]

The decision whether to vacate a dismissal under Rule 41(b) is clearly a matter of trial court discretion. Cameron v. Washington Metro. Area Transit Auth., 649 A.2d 291, 294 (D.C. 1994). However, it is a fundamental principle of appellate deference to the exercise of discretion that it must be undertaken with a proper appreciation of all relevant factors, including the range of such discretion. See, e.g., Smith v. Alder Branch Realty Ltd. Partnership, 684 A.2d 1284, 1289 (D.C. 1996); In re D.R.M., 570 A.2d 796, 803 (D.C. 1990); Johnson v. United States, 398 A.2d 354, 363-65 (D.C. 1979). In Bulin v. Stein, 668 A.2d 810, 815 (D.C. 1995) (citing Cameron, supra, 649 A.2d at 293-94, we recognized that the trial court's exercise of discretion under Rule 41(b) must, for Rule 4(m) dismissals, *fn4 include (1) consideration of the reasons for the plaintiff's failure to comply with the rule, and (2) prejudice to the plaintiff and lack of prejudice to the defendant accruing from the dismissal. Furthermore, we have suggested that other factors are relevant, such as the plaintiff's efforts to comply with the civil-procedure rules generally. See Cameron, supra, 649 A.2d at 294. It appears to us that the trial court here misconceived its discretionary powers by focusing only on the excuses offered for Wagshal's failure to comply with Rule 4(m) and not properly considering all the factors, including prejudice and general compliance with the civil-practice rules, relevant to the good-cause determination. Accordingly, we vacate the order appealed from and remand the case for a renewed exercise of discretion and any further proceedings consistent with this opinion.

I.

Rule 4(m) provides in relevant part:

Time limit for service. Within 60 days of the filing of the complaint, the plaintiff must file either an acknowledgment of service or proof of service of the summons, the complaint and any order directed by the Court to the parties at the time of filing. The acknowledgment or proof shall be filed as to each defendant who has not responded to the complaint. Prior to the expiration of the foregoing time period, a motion may be made to extend the time for service. The motion must set forth in detail the efforts which have been made, and will be made in the future, to obtain service. The Court shall extend the period for such time as may be warranted by the circumstances set forth in the motion. Failure to comply with the requirements of this Rule shall result in the dismissal without prejudice of the complaint. The Clerk shall enter the dismissal and shall serve notice thereof on all the parties entitled thereto.

(Emphasis added). The rule confers no discretion in the event of noncompliance; in the most straightforward manner, failure to timely file proof of service compels automatic dismissal. See Cameron, supra, 649 A.2d at 293.

However, while this provision operates efficiently to keep civil cases moving expeditiously and to clear the docket of marginal litigation, the rule itself evidences its mechanical rather than dispositive nature. Unlike most dismissals, a dismissal under this rule can only be made without prejudice. *fn5 Moreover, the trial court has broad power to extend without limitation the period for compliance if timely requested; it shall "extend the period for such time as may be warranted by the circumstances set forth in the motion." Indeed, prior to the revision of Rule 4(m) to provide for automatic dismissal, we had held it to be an abuse of discretion to dismiss a complaint for failure to make sufficient service of process. Rubin v. Lee, 577 A.2d 1158, 1161 (D.C. 1990).

Furthermore, Rule 4(m) must be read in conjunction with other relevant provisions, several of which provide a safe harbor from its otherwise strict dismissal requirement. Most notably, Rule 41(b), as mentioned above, provides that a Rule 4(m) order of dismissal does not even take effect until fourteen [711 A2d Page 115]

days after the dismissal is docketed, and that such order "shall be vacated upon the granting of a motion filed by plaintiff within such 14 day period showing good cause ...


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