Christopher Kollin, 

Plaintiff, 

v. 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

Case No. 2:12-cv-627 

North American Bus Industries, 

Inc., 

Judge Michael H. Watson 

Defendant. 

OPINION AND ORDER 

Plaintiff in this diversity action asserts Defendant wrongfully terminated his 

employment in violation of Ohio's whistle blower statute, Ohio Revised Code 

§ 4113.52 and Ohio public policy. Defendant moves to dismiss under Federal 

Rule of Civil Procedure 12(b )(5) on the ground that Plaintiff failed to serve the 

summons and complaint within 120 days. ECF No. 3. The Magistrate Judge 

issued a report and recommendation in which she recommends that the Court 

grant Defendants' motion to dismiss because good cause does not exist to 

excuse Plaintiffs failure to timely make service of process on Defendant, and the 

circumstances do not warrant a discretionary extension of the service deadline. 

ECF No.7. Plaintiff objects to those findings. ECF No.8. For the following 

reasons the Court OVERRULES Plaintiff's objections, adopts the report and 

recommendation, and dismisses this action without prejudice. 

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I. BACKGROUND 

Plaintiff filed this action on July 13, 2012. The Magistrate Judge fairly 

summarizes Plaintiff's efforts (or lack thereof) to obtain service as follows: 

In his Response to the Court's show cause Order, Plaintiff's counsel 

contends that counsel for Defendant left him a voice mail on July 31, 

2012 offering to waive service. (P's Resp. 2, ECF No. 5.) After 

Plaintiff's counsel neglected to respond to the call, counsel for 

Defendant left a second voice mail on August 8, 2012. /d. Plaintiff's 

counsel neglected to respond to that call as well. On November 8, 

2012, three days before the deadline to perfect service, Plaintiff's 

counsel left defense counsel a voice mail inquiring whether defense 

counsel would still agree to waive service. /d. The next day, Plaintiff's 

counsel issued a Notice of Lawsuit and Request to Waive Service to 

Northwest Corporate Research as Defendant's agent for process. /d. 

at 3. Although it is incorrectly listed as Defendant's agent on the 

"Corporation Details" summary of the Ohio Secretary of State's website, 

Northwest Corporate Research is not Defendant's agent for service. 

Delivery to Northwest was thus unsuccessful. Defendant contends that 

Plaintiff's counsel could have easily determined its statutory agent if he 

had opened the link to Defendant's actual filing with the Secretary of 

State rather than relying on the summary page. (Def.'s Op. 3, ECF No. 

6.) 

On November 26, 2012, two weeks after the service deadline expired 

and ten days after the Court entered its show cause order, Plaintiff's 

counsel mailed defense counsel a Notice of Lawsuit, a copy of the 

Complaint, and a waiver of service form. (P.'s Resp. 2, ECF No. 5.) 

Plaintiff did not, however, enclose two copies of the wavier form or 

prepaid means for defense counsel to return the form as Rule 

4(d)(1 )(C) requires. Fed. R. Civ. P. 4(d)(1 )(C); (Def.'s Op. 2, ECF No. 

6.) Nor did Plaintiff's counsel's late mailing provide a reasonable time 

of at least thirty days for defense counsel to respond, as Rule 4( d)( 1 )(F) 

requires. Fed. R. Civ. P. 4(d)(1 )(F) (Def.'s Op. 2, ECF No. 6.) 

Moreover, mailing the materials to defense counsel, rather than to 

Defendant's authorized agent, violated Rule 4(d)(1 )(A)(ii). Fed. R. Civ. 

P. 4( d)( 1 )(A)(ii). 

R & R 3, PAGEID # 44, ECF No.7. 

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II. STANDARD OF REVIEW 

"The district judge must determine de novo any part of the magistrate 

judge's disposition that has been properly objected to. The district judge may 

accept, reject, or modify the recommended disposition; receive further evidence; 

or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 

72(b)(3). 

Ill. DISCUSSION 

Plaintiff argues good cause exists for his failure to timely serve Defendant. 

In the alternative, he contends the Court should grant a discretionary extension 

even in the absence of good cause. In essence, Plaintiff blames Defendant for 

his failure to effect service in a timely manner. Specifically, he notes Defendant's 

counsel indicated Defendant would waive service, and the Ohio Secretary of 

State's website lists an incorrect address for Defendant's statutory agent. 

Federal Rule of Civil Procedure 4(m) governs this matter and provides as 

follows: 

If a defendant is not served within 120 days after the complaint is filed, 

the court-on motion or on its own after notice to the plaintiff-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. 

Fed. R. Civ. P. 4(m). This Court has adopted the position that even when a 

plaintiff fails to demonstrate good cause for the failure to timely serve the 

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defendant, the Court may still grant a discretionary extension if the circumstances 

warrant doing so. Royster v. Mohr, No. 2:11-cv-1163, 2013 WL 827709, at *2 

(S.D. Ohio Mar. 6, 2013); Wise v. Dept. Of Defense, 196 F.R.D. 52,56 (S.D. 

Ohio 1999). Hence, the Court must first determine whether good cause exists for 

the failure to serve Defendant within the specified time. If good cause exists, the 

Court must grant a reasonable extension. Fed. R. Civ. P. 4(m). If, however, 

good cause is lacking, the Court must still consider whether it should exercise its 

discretion and grant an extension. Royster, 2013 WL 827709, at *2; Wise, 196 

F.R.D. at 56. 

Defense counsel's indication that Defendant would waive service of 

process, and the incorrect address for Defendant's statutory agent on the Ohio 

Secretary of State's website, do not constitute good cause for Plaintiff's failure to 

serve Defendant in a timely manner. Rule 4(m) provides a plaintiff a generous 

120 days to effect service precisely to give a plaintiff time to overcome such 

routine hurdles. If Plaintiff's counsel had initiated efforts to serve Defendant 

sooner, the incorrect address on the Secretary of State's website would not have 

prevented Plaintiff from serving Defendant before the expiration of the 120 days. 

Likewise, the assurance by Defendant's attorney in late July and early August 

2012 that Defendant would waive service does not excuse the failure of Plaintiff's 

counsel to respond to Defendant's counsel until November 8, 2012, only three 

days before the 120 day period expired, nor does it show cause for the failure of 

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Plaintiff's counsel to wait until two weeks after the allotted time expired to send 

defense counsel a waiver of service form. In short, good cause does not exist for 

Plaintiff's failure to timely serve Defendant. 

The Court must next consider whether to exercise its discretion and grant 

an extension of time to serve Defendant despite the lack of good cause. If 

Plaintiff's efforts to obtain service within the specified time were even arguably 

diligent, the Court might be inclined to grant a discretionary extension. They were 

not. Plaintiff gives no reason for his counsel waiting until three days before the 

expiration of the deadline to make any effort to serve Defendant. In these 

circumstances, a discretionary extension is not warranted, because granting such 

an extension might encourage plaintiffs to wait until days before the 120 day 

period expires to begin efforts to initiate service. 

In sum, the Court holds that good cause does not exist to excuse Plaintiff's 

failure to timely serve Defendant within 120 days as required by Rule 4(m), and 

given the circumstances of that failure, the Court declines to grant a discretionary 

extension. 

IV. DISPOSITION 

For the above reasons, upon de novo review, the Court OVERRULES 

Plaintiff's objection to the Magistrate Judge's report and recommendation. ECF 

No. 7. The Court ADOPTS the Magistrate Judge's recommendation and 

DISMISSES this action without prejudice for failure to timely effect service of 

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process on Defendant. 

IT IS SO ORDERED. 

Ml HAEL H. WAT N, JUDGE 

UNITED STATES DISTRICT COURT 

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