Thursday, March 29, 2018

Federal Court Dismisses Products Case (in part) Due to Failure to Complete Service and Statute of Limitations Issues

The failure to complete service under the applicable statute of limitations was the issue reviewed in the case of Ginzburg v. Electrolux Home Products, No. 17-3384 (E.D. Pa. Jan. 19, 2018 Quinones Alejandro, J.).   In this matter, the Federal Court granted a Defendant’s Motion to Dismiss due to the Plaintiff’s failure to complete service of process within the applicable statute of limitation. 

In this matter, the case originally was brought in the state court but was removed to federal court.   The Federal Court noted that, even though initial service of process may have been improper in a matter, under 28 U.S.C.§1448, a Plaintiff is permitted to reserve the right to correct such deficiencies once a case has been removed to Federal Court.  

Although the Plaintiff did reserve such rights, the court found that dismissal was still proper on the grounds of improper service of process.  

More specifically, the court ruled that, under Pennsylvania law, Plaintiff’s failure to serve the Defendant properly within ninety (90) days of a filing a Praecipe for Writ of Summons precluded the Writ from tolling the statute of limitations.   Given that the two (2) year tort statute of limitations had expired, the court found that all of the Plaintiff’s products liability and tort claims must be dismissed.

In its Opinion, the court noted that a defective attempt of service at the last minute to the wrong address did not amount to proper service, or even a good faith attempt at service.   The court emphasized that the Defendant never received actual notice of the suit until after the statute of limitations had expired.  

On the breach of warranty claims, the court noted that only the filing of a actual Complaint, and not the defective service of the Writ, could serve to toll the four (4) year statute of limitations applicable to that type of cause of action.  

In this matter, the Complaint did not allege the date that the product was delivered and, as such, the Complaint was deemed to be deficient in pleading the warranty claims.  Accordingly, the court dismissed the breach of warranty claim without prejudice to the Plaintiff’s right to amend the Complaint with allegations of a delivery of the product within the four (4) year period.  

Anyone wishing to review a copy of this decision may click this LINK.  The court's companion Order can be viewed HERE.

I send thanks to Attorney James M. Beck of the Philadelphia office of the law firm of Reed Smith for bringing this case to my attention. 

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