Monday, December 19, 2022

Judge Mariani Excuses Technical Error In Service of Process Where Plaintiff Made Good Faith Efforts

In the case of Kerr v. Sagan, No. 3:21-CV-0459 (M.D. Pa. Oct. 13, 2022 Mariani, J.), the court denied a Motion to Dismiss in a Federal Court motor vehicle accident matter, which Motion was based upon issues regarding service of process and the statute of limitations.

The defense argued that the Plaintiff's claims were time-barred because the Plaintiff did not effectuate service before the statute of limitations expired.  This case initially started in the state court and was then removed to Federal Court.

The defense proceeded with a Rule 12(b)(6) Motion to Dismiss for failure to state a cause of action upon which relief may be granted and a Rule 12(b)(5) Motion to Dismiss for failure to complete service.    

The Court noted that because the record confirmed that service was finally completed before the case was removed to Federal Court, the validity of the service upon the out-of-state defendant would be determined under an application of Pennsylvania law.

The court found that the case before it was not facially barred by the statute of limitations.

Judge Robert D. Mariani

Judge Mariani noted that, although the initial effort at service by First Class Mail was technically improper under Pennsylvania law, and although the Complaint was not reinstated until after the expiration of the statute of limitations, in the interim, the Plaintiff had made good faith efforts to try to complete service where the Plaintiff had actually tried to complete service in a timely fashion.

The Court also noted that the parties had engaged in active settlement negotiations which demonstrated that the Defendant had adequate notice of the pendency of the litigation.

The court additionally noted that a Plaintiff who incorrectly but genuinely believes that he or she has effectuated service cannot be expected to make continuing service efforts.

Notably, Judge Mariani distinguished between "a plaintiff who attempts service of process, knows it was a failed attempt, and declines to remedy it, and a plaintiff who incorrectly but genuinely believes he has effectuated service and therefore does not make additional attempts.

In light of the above, the court found that the Plaintiff did not intentionally stall the litigation such that dismissal under the law of Lamp v. Heyman was required.

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 Reed Smith law firm for bringing this case to my attention.

Source of image:  Photo by Nathan Dumlao on

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