Reed v. Cagan

ADKINS, Judge. This case is an appeal from an order of the Circuit Court for Baltimore City granting a motion to dismiss the claims of Antoine Reed, appellant, against Daniel Cagan, Esq., appellee, on the ground of a two-year delay in the service of process after the filing of the complaint, and related procedural issues. ⁶⁴⁴ On May 3, 1996, appellant filed a complaint for brain damage allegedly caused by exposure to lead-based paint at several houses owned by appellee. Appellant also sued more than twenty other defendants. Several defendants were served with process, and discovery proceeded with respect to these defendants.

Appellee, although a named defendant, was not served with process for more than two years. On or about May 5, 1998, appellee moved to dismiss the complaint alleging that he had not been served until April 6, 1998, and therefore the court was required to dismiss under Maryland Rule 2-507(b). On July 6, 1998, a hearing was held and the circuit court dismissed the complaint. Appellant asks us to'consider whether the trial court erred in granting appellee’s motion to dismiss with prejudice: 1) for lack of jurisdiction pursuant to Rule 2-507; and 2) on the ground that appellant failed to obtain a lift of a stay prior to a re-issue of summons and service.

We affirm the trial court’s decision based on Rule 2-507 and, therefore, do not reach the second issue. FACTS AND LEGAL PROCEEDINGS Appellant was born on May 6, 1975. Appellant’s mother was a tenant of 539 North Washington Street from 1977-78. On May 3, 1996, 1 appellant filed a fifty-eight count complaint against numerous defendants alleging brain damage suffered from exposure to lead-based paint he ingested.

As previously indicated, the case proceeded through the pretrial process against several defendants, although appellee was not served with process. Appellee is a practicing Maryland attorney with offices in downtown Baltimore. Appellant was aware of appellee’s professional office address from at least November 1996, although no attempt to serve him at that address was made until 1998. On July 31, 1996, a pretrial conferencé order was entered, which set a discovery deadline of October 25, 1997, and a trial ⁶⁴⁵ date of February 25, 1998.

During 1996 and 1997 discovery was conducted, some defendants were granted summary judgment, and at least one was dismissed by stipulation of appellant. On October 7,1997, appellant filed a “Motion to Remove Case From [Pre-Trial Order],” alleging that “[t]he dates set forth in the ... scheduling order are now moot in that all served Defendants are no longer part of the instant case.” Appellant also maintained that “due to the statute of limitations a dismissal of the action was not possible.” On November 17, 1997, the circuit court granted the motion and hand-wrote on the order, “[c]ase stayed subject to Md. Rule 2-507.” On February 27, 1998, appellant requested that the circuit court clerk re-issue process for service on appellee. 2 On April 6,1998, appellee was served with the summons, complaint, and discovery requests. On May 5,1998, appellee filed a motion to lift the stay for the limited purpose of filing a motion to dismiss and also filed a motion to dismiss. The motion sought dismissal pursuant to Rules 2-322 (preliminary motions), 2-507(b) (lack of jurisdiction), and 2-113 (process).

Specifically, the motion stated: Because this action was initiated [approximately] two years before this Defendant was ‘served’ with ‘process,’ this action must be dismissed under Maryland Rule 2-507(b). The writ of service was rendered ineffective under Maryland Rule 2-113 because of the inordinate gap between the filing of the Complaint and service upon this Defendant.... The inexcusable lapse of time from the initiation of the lawsuit requires that this [c]ourt dismiss the Complaint against this Defendant for lack of jurisdiction over his person, laches, limitations, ineffective process, [and] ineffective service of process.... ⁶⁴⁶ On July 6, 1998, at the hearing, the court addressed the motions to lift the stay and to dismiss as a combined issue. The court dismissed appellant’s claims against appellee, because: Service was not achieved ... until long after Mr. Cagan’s professional address became known.

It seems to the [c]ourt that the Plaintiff has not been diligent in the pursuit of this lawsuit against the Defendant, Cagan. And because of that lack of diligence in pursuing this claim; and the fact that the service was achieved beyond the 120 days from the issuance of the original summons in this matter; and because we believe the Defendant, Cagan has suffered prejudice in his ability to defend this case, resulting from the delay in the prosecution of the matter; we grant the Defendant’s Motion to Dismiss. This appeal was timely noted from the order of dismissal. DISCUSSION Standard of Review When a party seeks dismissal of an action under Rule 2-507 (“Dismissal for lack of jurisdiction or prosecution”), the decision to grant or deny the dismissal is committed to the sound discretion of the trial court.

See Powell v. Gutierrez, 310 Md. 302, 309-10 , 529 A.2d 352 (1987). The trial court’s decision will be overturned on appeal only “in extreme cases of clear abuse.” Stanford v. District Title Ins. Co., 260 Md. 550, 555 , 273 A.2d 190 (1971). The responsibility is on the trial court to weigh and balance the rights, interests, and reasons of the parties in light of the public demand for prompt resolution of litigation.

See Langrall, Muir & Noppinger v. Gladding, 282 Md. 397, 400 , 384 A.2d 737 (1978). The primary focus of the inquiry should be on diligence and whether there has been a sufficient amount of it. See Stanford, 260 Md. at 555 , 273 A.2d 190 . The Court of Appeals has announced that it “is totally committed to the proposition that ‘justice delayed is justice denied.’ ” Id. at 554 , 273 A.2d 190 . ⁶⁴⁷ I. The Record was Sufficient to Support the Trial Court’s Holding That Appellee was Prejudiced by Appellant’s Failure to Serve Him With Process for Two Years After the Filing of the Complaint.

Appellant contends that the trial court erred in dismissing his suit on the ground of a delay in service pursuant to Rule 2-507(b) because appellee failed to prove prejudice arising from the delay. 3 We hold that under the present circumstances the trial court acted within its discretion in dismissing appellant’s suit even without a demonstration by appellee of the specific aspects of the harm suffered by him. We find helpful the analysis of Rule 2-507(b) by the United States District Court for the District of Maryland, which was called upon to apply the Rule in the quite similar case of Eccles v. National Semiconductor Corp., 10 F.Supp.2d 514 (D.Md.1998). In Eccles , the plaintiff similarly failed to serve the defendant for approximately two years after filing the complaint. See id. at 517 .

A notice of contemplated dismissal pursuant to Rule 2-507 was issued, and the plaintiff timely filed a motion to defer dismissal. See id. at 516 . Subsequently, the defendant filed a notice of removal in the United States District Court for the District of Maryland pursuant to 28 U.S.C. § 1441 . See id.

The defendant argued that the federal court was required to dismiss the case because the plaintiff failed to serve the complaint under Maryland or federal law within 120 days of filing. See id. The District Court reasoned: Because state law applies to pre-removal conduct, the Court first analyzes the propriety of dismissal under Maryland Rule 2-507 for Plaintiffs failure to serve process within 120 days of filing the case in state court. Rule 2-507(b) permits the Circuit Courts of Maryland to dismiss a case when the ⁶⁴⁸ plaintiffs failure to serve process within 120 days after its issuance deprives the state court of personal jurisdiction.

Id. at 519 . With respect to whether there was good cause to deifer dismissal within the meaning of Rule 2-507(e), the court reasoned: A litigant meets Rule 2-507(e)’s ‘good cause’ standard by proving willingness to proceed with the prosecution of the claim, and that the delay is not completely unjustified. Additionally, the trial court should consider whether the non-movant’s delay has substantially prejudiced the movant. Plaintiffs failure to serve process ... for approximately two years after initiating the litigation clearly shows that she had no interest in seriously pursuing the matter---- Nor has Plaintiff proffered the slightest justification for her inexcusable delay.

Accordingly, dismissal is appropriate under Maryland Rule 2-507 as applied to Plaintiffs pre-removal conduct. Id. at 520 (footnote omitted) (citations omitted). Like the plaintiff in Eccles , appellant did not proffer any justification for his two-year delay in service. See id.

He admits that he was aware of appellee’s status as a practicing attorney in Baltimore with offices within a few blocks of the circuit court. Appellant offers no reason why he would have had any difficulty serving appellee, and no explanation for failing to serve him. Like the Eccles court, the trial court below did not identify the specifics of how the prejudice to appellee from the two-year delay in service manifested itself. Under the present circumstances, however, we do not consider a specific demonstration of prejudice to be required.

Prejudice from delay can exist that is not amenable to specific delineation. In the present case, discovery had been conducted, including depositions of appellant and others closely involved in appellant’s history; documents were exchanged; memories were refreshed, and recollections recorded. Appellee missed the opportunity to be present and participate when critical questions ⁶⁴⁹ were asked of appellant’s family members regarding his personal history as it might relate to his alleged exposure to lead paint at the premises owned by appellee, and the effect of such exposure on his mental development. The considerations discussed in Section II, arising from the fact that suit was not filed until three days before expiration of the statute of limitations, and thus service not achieved until almost two years after the limitations period, also support the trial court’s finding of prejudice to appellee.

Requiring more specific delineation and thereby a stronger showing of prejudice might be appropriate had appellant identified any justification for his failure to serve appellant for two years. With a justified delay, a higher threshold for demonstration of prejudice should be applied. In the absence of any justification for such a lengthy delay, however, the trial court acted within its discretion in drawing an inference of prejudice from the delay itself, coupled with ongoing litigation against other defendants before service of appellee.

II

A Belatedly Served Defendant Can Initiate a Dismissal Under Rule 2-507(b). Appellant argues that appellee had no right to file a motion to dismiss directly with the court based on Rule 2-507(b), and that for the Rule to have any application to appellee’s motion to dismiss, the clerk must have initiated the dismissal, either on its own, or after a request by appellee. Appellant relies on Thomas v. Ramsburg, 99 Md.App. 395 , 637 A.2d 863 (1994), for this proposition. We find Thomas to be inapposite and disagree with appellant’s contention.

Subsection (b) of Rule 2-507, “Dismissal for lack of jurisdiction or prosecution” states: (b) For lack of jurisdiction. An action against any defendant who has not been served or over whom the court has not otherwise acquired jurisdiction is subject to dismissal as ⁶⁵⁰ to that defendant at the expiration of 120 days from the issuance of original process directed to that defendant. Appellee was not served with process for approximately two years from the time the complaint was filed and the original process was issued against him. Thus, there is no question that the case.was subject to dismissal, in the court’s discretion.

In Thomas , this Court addressed the appropriate procedure when a defendant moved to dismiss a case for lack of prosecution under Rule 2-507(c). Subsections (c) through (f) provide: (c) For Lack of Prosecution. An action is subject to dismissal for lack of prosecution at the expiration of one year from the last docket entry, other than an entry made under this Rule, Rule 2-131, or Rule 2-132, except that an action for limited divorce or for permanent alimony is subject to dismissal under this section only after two years from the last such docket entry. (d) Notification of