2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-22-2010

Richard Snyder v. Carolyn Swanson

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3164

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Recommended Citation

"Richard Snyder v. Carolyn Swanson" (2010). 2010 Decisions. Paper 1674.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3164

___________

RICHARD SNYDER,

 Appellant

v.

CAROLYN SWANSON 

Personal Representative Estate of George Swanson,

Carolyn Swanson and Robert Swanson; 

CAROLYN SWANSON; GEORGE SWANSON

____________________________________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civil Action No. 08-cv-00880)

District Judge: Honorable Gregory M. Sleet

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 16, 2010

Before: MCKEE, FUENTES and NYGAARD, Circuit Judges

(Opinion filed: March 22, 2010)

___________

OPINION

___________

PER CURIAM

Pro se appellant Richard Snyder appeals from the order of the United States

District Court for the District of Delaware dismissing his complaint. We will affirm.
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On November 24, 2008, Snyder filed his complaint in District Court, naming as

defendants Carolyn Swanson, personal representative of the estate of George Swanson;

Carolyn Swanson; and Robert Swanson. According to the allegations, the matter stems

from a frustrated real estate contract, and Snyder has a history of litigation with the

defendants in state and federal courts. Snyder sought to have prior state and federal court

rulings vacated so that he could proceed on his claims in federal court, and he requested a

jury trial. Summons was issued to attorney Walter W. Green, a non-party, and was

returned as executed. On March 30, 2009, the District Court ordered Snyder to show

cause why the case should not be dismissed for failure to serve under Rule 4(m) of the

Federal Rules of Civil Procedure. Snyder filed a response, contending, among other

things, that Green and his limited liability company have represented the defendants in

other matters relating to his case. Attached to Snyder’s response was a letter from Green

dated March 19, 2009, informing Snyder that at no time did he agree to accept service on

Carolyn Swanson’s behalf and that the process server did not personally serve Green but

instead served a secretary in his office. Nevertheless, Snyder argued that service was

proper on Green as the defendants’ agent. Alternatively, Snyder requested limited

discovery to establish the facts contained in his process server’s affidavit, or, an

additional sixty days to complete service on the defendants’ attorneys.

On June 11, 2009, the District Court rejected Snyder’s contentions and determined

that Snyder had not served the defendants properly under Rule 4. Further, the District
 It appears from Snyder’s complaint that his lawsuit is based on an underlying real 1

estate deal that is the subject of a lawsuit he filed against the defendants in Maryland state

court in 2002. Because it also appears that the statute of limitations on his claims has run,

we conclude that the District Court’s dismissal without prejudice is a final decision. See

Ahmed v. Dragovich, 297 F.3d 201, 207 (3d Cir. 2002) (holding that an order dismissing

a claim without prejudice is a final appealable order if the statute of limitations for that

claim has expired). See also Md. Code § 5-101.

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Court found that Snyder had made no attempts to effect proper service upon receiving

Green’s letter or upon receiving the order to show cause. Thus, the District Court

concluded that Snyder had not demonstrated good cause for his failure to serve his

complaint on the defendants and dismissed the case under Rule 4(m). Snyder filed a

timely motion for reconsideration, which the District Court denied by order entered June

30, 2009.

Snyder appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review 1

the District Court’s order for abuse of discretion. See Petrucelli v. Bohringer &

Ratzinger, 46 F.3d 1298, 1308 (3d Cir. 1995). Under Rule 4(m), the District Court must

first determine whether good cause exists for failure to serve. Id. at 1305. If good cause

exists, the District Court must extend the time for service. Id. If good cause does not

exist, the District Court has discretion either to dismiss the complaint without prejudice or

to extend the time for service. Id.

We agree with the District Court that Snyder has not shown good cause for his

failure to serve. Snyder’s main argument is that he properly served the defendants by

serving Green, contending that Green was authorized to accept service as the defendants’
4

agent under Rule 4(e). Snyder bases his assertion on Green’s having acted as counsel in

prior litigation. There is no showing that Green was expressly “authorized by

appointment or by law” as Rule 4(e) contemplates. Rather, Snyder argues that Green’s

authority to accept service is implied. We do not credit this argument of implied authority

when the record shows that Green himself expressly and unambiguously informed Snyder

that he did not agree to accept service. Moreover, from the documents Snyder submitted

in support of his response to the District Court’s show cause order, as well as statements

made in Snyder’s brief, it is uncontested that the process server did not personally serve

Green and instead served a secretary present in Green’s office. Snyder’s arguments

regarding the propriety of service delivered to a secretary in Green’s office fares no

better. Snyder argued in his response to the show cause order that the process server’s

handing the summons and complaint to Green via the secretary–an employee of Green’s,

or of Daniels & Green, L.L.C.–constitutes proper service on both Green and the limited

liability company of which Green is a member. However, Snyder is not suing Green or

the L.L.C.; he is suing the defendants named in the complaint. Thus, it is irrelevant

whether service could be deemed proper as to Green or the company. We are

unpersuaded by Snyder’s reliance on this set of facts.

For similar reasons, the District Court did not abuse its discretion in dismissing the

complaint rather than extending the time for service. See MCI Telecommunications

Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1098 (3d Cir. 1995). As the District Court
 That Snyder’s claim may be time-barred, see supra note 1, does not alter our 2

analysis. The expiration of the statute of limitations does not require a district court to

extend the time for service; the court has discretion to dismiss the case even if the refiling

of the action is time-barred. See MCI Telecommunication Corp., 71 F.3d at 1098 (citing

Petrucelli, 46 F.3d at 1306).

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noted, although Snyder is proceeding pro se, by his own account, he is an experienced

litigant. Further, the District Court duly considered that Snyder made no attempt to serve

the defendants properly after receiving Green’s letter or after receiving the show cause

order. Snyder argues that the District Court failed to consider his request to extend the

time for effecting service. In fact, the District Court recognized Snyder’s request for

additional time. (See June 3, 2009 Mem. Order at 2.) Moreover, in his response to the

show cause order, Snyder emphatically argued that service already was accomplished

properly. In seeking an extension of time to comply with Rule 4, Snyder stated his intent

“to again serve these attorneys who always have, and continue to, represent defendants.” 

(Response to Show Cause Order at 6.) Given that Snyder’s request to extend the time to

serve the complaint actually evidenced his refusal to effect service on the defendants and

his continued pursuit to serve Green, we view dismissing the complaint as an appropriate

exercise of the District Court’s discretion. We also discern no error in the District 2

Court’s denial of Snyder’s motion for reconsideration.

We will affirm the District Court’s judgment.