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Complaint Dismissed For Failing To Serve Process Within 120 Days Of Filing Of Action

Rusnakova v. World Kitchen, LLC.
Civil No., RDB-12-03650 (D. Md. 2013)

by Kevin M. Cox, Associate
Semmes, Bowen & Semmes (

Plaintiff, Alena Rusnakova, brought this products liability action against Defendant World Kitchen, LLC, alleging that on November 11, 2008, she suffered injuries resulting from design and manufacturing defects in a dish that she bought from Defendant. Pending before the Court was Defendant’s Motion to Dismiss Plaintiff’s Complaint for insufficient service of process, pursuant to Rules 12(b)(2), 12(b)(4), and 12(b)(5) of the FEDERAL RULES OF CIVIL PROCEDURE. Defendant argued that Plaintiff, who originally filed this action in a Maryland state court, had failed to serve process within 120 days of filing the action, thereby mandating dismissal under Rule 2-507(b) of the MARYLAND RULES OF CIVIL PROCEDURE.

On February 18, 2011, Plaintiff filed her Complaint against Defendant in the Circuit Court for Baltimore City, in which she alleged design defect, manufacturing defect, negligence, and breach of warranty. Plaintiff served her Complaint on Defendant on November 9, 2012, over twenty months after she filed the suit. Defendant then removed the suit to this Court on the basis of diversity jurisdiction, pursuant to 28 U.S.C. § 1332. On December 20, 2012, Defendant filed the subject Motion to Dismiss for insufficient service of process, citing Rules 12(b)(2), 12(b)(4), and 12(b)(5) of the FEDERAL RULES OF CIVIL PROCEDURE.

Defendant argued that Rule 2-507(b) of the MARYLAND RULES OF CIVIL PROCEDURE mandated the dismissal of Plaintiff’s Complaint, because Plaintiff failed to serve process upon Defendant within 120 days of filing her Complaint. State law governs the sufficiency and service of process before removal to federal court. Under MD. RULE 2-507(e), a court may defer the dismissal of a case if the plaintiff can prove that the delay is not completely unjustified and that the delay did not substantially prejudice the defendant.

Plaintiff failed to meet the requirements of MD. RULE 2-507(b), because she did not serve Defendant with the Complaint until twenty months after she filed the lawsuit with the Maryland Circuit Court. The only issue that remained was whether the Court should have exercised its discretion to defer the dismissal of Plaintiff’s case under MD. RULE 2-507(e). MD. RULE 2-507(e) required Plaintiff to move for a deferral of dismissal within thirty days after her service of the Complaint. Plaintiff never made such a motion. Nevertheless, the Court considered the merits of Plaintiff’s MD. RULE 2-507(e) claim.

Upon review, the Court found that it would be inappropriate to defer dismissal of this case. Plaintiff admitted that she “filed suit in state court just before the earliest conceivable date as of which an argument could be made that limitations had run, even though she knew additional investigation would be required, which resulted in the delay in serving Defendant.” Because the Court found that Plaintiff filed this action to circumvent the statute of limitations, it did not defer the dismissal of Plaintiff’s Complaint under MD. RULE 2-507(e). Moreover, Plaintiff failed to satisfy the two prongs of the Reed analysis, because she did not show any reasonable justification for her delay and because Defendant has suffered prejudice. Therefore, the Court dismissed Plaintiff’s Complaint pursuant to MD. RULE 2-507(b).

In sum, the Court held that Plaintiff attempted to extend the limitations period on her tort claim by filing her action and then failing to serve Defendant for a nearly two-year period. The Court could not allow this type of delay, because it “would frustrate limitations statutes and policies underlying them.” Furthermore, Plaintiff failed to satisfy either prong of the Reed test. Accordingly, the Court dismissed Plaintiff’s Complaint for failure to satisfy MD. RULE 2-507(b).