2. In Bartel v. Various Defendants, 965 F.Supp.2d 612, 625 (E.D. Pa. Aug. 26, 2013) (Robreno, J.), this Court denied certain defendants' motions to dismiss due to improper service of process in various Group 1 MARDOC cases. The Court held that service of process was proper under Ohio law if the plaintiffs could produce sufficient proof "which verifies and confirms that through the mailing of the process papers, defendant received notice of the pending action." Id. (citing Piercey v. Miami Valley Ready-Mixed Pension Plan, 110 F.R.D. 294, 295 (S.D. Ohio 1986)). This Court determined that "a signed returned green card, evidencing receipt by defendant of the original process papers, serves as sufficient proof of service" under Ohio law and the law of the case. Id. at 626. The Court directed Magistrate Judge Hey to oversee the process of allowing the defendants to challenge the authenticity and genuineness of the green cards produced by the plaintiffs. Id. at 626 n.23.
On October 29, 2013, Judge Hey ordered the instant Plaintiffs to provide Defendants with copies of the certified green cards for all Group 1 cases where service was disputed by December 1, 2013. See ECF No. 3382. Defendants were given until December 16, 2013 to present any challenge to the authenticity and genuineness of any green card by filing a motion for hearing specifically identifying the defect. Id. On December 16, 2013, Defendants filed a "Motion Pursuant to Court's October 29, 2013 Order Concerning Plaintiffs' Evidence of Service of Process." See ECF No. 3719. Defendants alleged that "plaintiffs' production [did] not evidence service in any of the cases at issue, and accordingly the defendants in the cases at issue should be dismissed." Id. Plaintiffs responded to Defendants' motion on January 15, 2014 (ECF No. 3923), and Defendants replied on January 31, 2014 (ECF No. 4017).
On March 19, 2014, Judge Hey issued a Report and Recommendation as to Defendants' motion. See ECF No. 4202. Judge Hey recommended that Defendants' motion be granted in part and denied in part. Specifically, Judge Hey recommended (1) that the motion be denied where the plaintiff had produced a green card as to a specific defendant; and (2) the motion be granted — and the defendant be dismissed from the case — where the plaintiff had failed to produce a green card as to a specific defendant. Judge Hey further recommended that no ruling should be made on the cases governed by Michigan law.
Defendants timely filed objections to Judge Hey's Report and Recommendation on April 2, 2014. See ECF No. 4267. Specifically, Defendants state that (1) Plaintiffs' production of green cards does not satisfy their burden of establishing service of process upon Defendants; (2) Plaintiffs' evidence is unreliable and is not verifiable; and (3) the service deadlines should not be extended in cases where a plaintiff did not serve a defendant within 120 days of the filing of the complaint. Plaintiffs responded to Defendants objections on April 17, 2014. See ECF No. 4289.
I. Legal Standard
A. Review of Report and Recommendation Upon Objections
The Court undertakes a de novo review of the portions of the Report and Recommendation to which a party has objected. See 28 U.S.C. § 636(b)(1) (2006 & Supp. V 2011); Cont'l Cas. Co. v. Dominick D'Andrea, Inc., 150 F.3d 245, 250 (3d Cir. 1998). The Court "may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
B. Motion to Dismiss based on Improper Service of Process
Under Federal Rule of Civil Procedure 4(m), "[i]f a defendant is not served within 120 days after the complaint is filed," then "the court . . . must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." The Third Circuit has interpreted this rule to mean that, even without good cause, the court can, in its discretion, provide additional time to cure rather than dismiss the defendants. Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995).
II. Certain Shipowner Defendants' Motion
A. Defendants' Arguments
Defendants first assert that the production of green cards by Plaintiffs does not establish that there was valid service of process upon each defendant. Defendants state that (1) Plaintiffs have not complied with the Piercey standard under Ohio law; and (2) Judge Lambros's Order regarding green cards did not become "law of the case." Accordingly, Defendants' assert that they were improperly served and should be dismissed from the cases.
Defendants next assert that the evidence submitted by Plaintiffs is unreliable and not verifiable. Defendants allege that the internal database printouts and the affidavits submitted in connection with the green cards cannot be relied upon by this Court. Defendants state that "there is no way to verify the information presented, or to confirm that the `green card' shown on the page does in fact pertain to service of the complaint for the plaintiff listed or starred."
Finally, Defendants assert the Court should dismiss all cases where service was not completed within 120 days of the filing of the complaint. Defendants state that "good cause" does not exist to extend the service deadlines, and the Court should not provide additional service time in the absence of good cause.
B. Plaintiffs' Arguments
Plaintiffs assert that they have complied with the Court's orders (and this Court's memorandum in Bartel) in producing green cards in the cases where service is disputed. Plaintiffs further state that good cause exists to cure any alleged defect regarding untimely service in cases where service was not completed in 120 days.
III. Analysis
Defendants first argue that the production of green cards does not satisfy Plaintiffs' burden of proving service of process as to each defendant. This argument was explicitly rejected in Bartel and will not be revisited by this Court. Defendants next argue that the evidence relied upon by Plaintiffs is unreliable and not verifiable. This Court disagrees. In the cases listed in Exhibit "A," Plaintiffs have produced the required green cards which are sufficient to satisfy Plaintiffs' burden of proving service of process as to each defendant. In Bartel, this Court held that, "a signed returned green card, evidencing receipt by defendant of the original process papers, serves as sufficient proof of service to satisfy the verification requirements of Ohio Rule 4.3(B)(1)." 965 F. Supp. 2d at 626. As Judge Hey noted, "the plaintiffs have provided exactly that information." See ECF No. 4202 at 15.
Finally, Defendants allege that Judge Hey was incorrect in recommending that the Court extend the time to serve Defendants, in certain cases, nunc pro tunc. Defendants assert that service of process occurred outside the 120 day time-frame permitted by Federal Rule of Civil Procedure 4(m), and no good cause exists to extend the time for service to occur. Accordingly, Defendant asserts that these claims should be dismissed. Plaintiffs' do not dispute that Defendants were untimely served in certain cases. However, Plaintiffs assert that Defendants will not be prejudiced if the Court permits Plaintiffs to cure the defect of belated service of process. As Judge Hey noted, the court can, in its discretion, provide additional time to cure rather than dismiss the defendants. See Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995). Given that Plaintiffs have provided green cards for these cases evidencing that Defendants were put on actual notice of the pending action, the unique procedural posture of these MARDOC cases in MDL 875, and the lack of prejudice to Defendants, the Court determines that any defect pertaining to untimely service of process in these cases may be cured by this Court extending the time for Plaintiff to serve Defendants, nunc pro tunc, so that service is considered timely in each case. See McCurdey v. Am. Bd. of Plastic Surgery, 157 F.3d 191, 196 (3d Cir. 1998).
Accordingly, Defendants' motion is denied in the cases and claims listed in Exhibit "A" as Plaintiff has provided sufficient evidence of service of process as to each defendant.
