Case: 3:19-cv-00273-wmc Document #: 104 Filed: 02/17/22 Page 1 of 8
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` IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WISCONSIN
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`OPINION AND ORDER
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` 19-cv-273-wmc
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`DEWANE D. FRASE, as Special Administrator
`of the Estate of Douglas Frase, deceased, &
`CAROLE L. FRASE,
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`Plaintiffs,
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`v.
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`ASHLAND CHEMICAL COMPANY DIVISION
`OF ASHLAND, INC.; BP PRODUCTS NORTH
`AMERICA, INC.; EXXON MOBIL CORPORATION;
`FOUR STAR OIL AND GAS COMPANY (f.k.a. GETTY
`OIL COMPANY); SHELL CHEMICAL L.P.; SHELL OIL
`COMPANY; SUNOCO (R&M), LLC; TEXACO DOWNSTREAM
`PROPERTIES, INC.; & UNION OIL COMPANY OF
`CALIFORNIA d/b/a UNOCAL CORPORATION,
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`Defendants.
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`From approximately 1952 until 1992, Douglas Frase was employed at a tire
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`manufacturing facility, during which time he worked with various “benzene-containing
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`products.” In April of 2016, Frase was diagnosed with Mylodysplastic Syndrome
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`(“MDS”), from which he died approximately seven months later. According to plaintiffs,
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`Frase’s surviving spouse, and his estate’s special administrator, Frase’s death was the result
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`of his exposure to the benzene-containing products. Because defendants designed,
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`manufactured, and/or sold the products, plaintiffs maintain that they should be held liable
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`under negligence and strict product liability theories for Frase’s contracting MDS, suffering
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`and death. Presently before the court is a motion to dismiss by four of the nine defendants
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`in this action, who argue that because plaintiffs failed to serve them timely, they must be
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`Case: 3:19-cv-00273-wmc Document #: 104 Filed: 02/17/22 Page 2 of 8
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`dismissed from this lawsuit. (Dkt. #77.) For the reasons discussed below, the court will
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`deny this motion.
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`BACKGROUND
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`On December 28, 2018, plaintiffs filed this products liability action in state court
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`against nine, named defendants. While still in state court, four of the nine defendants
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`moved to dismiss plaintiffs’ claims against them due to improper service and lack of
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`personal jurisdiction. These four defendants are Four Star Oil and Gas Company (f.k.a.
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`Getty Oil Company), Shell Chemical L.P., Sunoco (R&M), LLC, and Texaco Downstream
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`Properties, Inc., referred to here as the “Group A defendants.” Before this motion had
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`been fully briefed or resolved, however, the remaining defendants removed the case to
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`federal court. These five remaining defendants are Ashland Chemical Company Division
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`of Ashland, Inc., BP Products North America, Inc., Exxon Mobil Corporation, Shell Oil
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`Company, and Union Oil Company of California d/b/a Unocal Corporation, referred to
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`here as the “Group B defendants.”
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`On April 11, 2019, defendants removed this case to federal court, and that same
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`day all defendants moved to dismiss the complaint for failure to state a claim. (Dkts. #1,
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`4, 6-13.) On May 16, 2019, it also came to the attention of the court that the plaintiffs
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`had not responded to the Group A defendants’ pending motions to dismiss for lack of
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`jurisdiction and improper service following removal. (Dkt. #24.) The court then directed
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`the Group A defendants to refile their motions so that they could be tracked by the
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`CM/ECF system (previously, they were attached as exhibits to the notice of removal) and
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`set a briefing schedule. (Dkt. #24.)
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`2
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`Case: 3:19-cv-00273-wmc Document #: 104 Filed: 02/17/22 Page 3 of 8
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`Rather than filing an opposition brief to these jurisdictional motions, however,
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`plaintiffs filed a notice that purported to dismiss the Group A defendants under Federal
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`Rule of Civil Procedure 41(a). (Dkt. #41.) Because Rule 41(a) is limited to dismissals of
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`an entire case, the court construed plaintiffs’ notice as a motion to amend their complaint
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`and permitted them to dismiss the Group A defendants without prejudice under Rule
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`15(a)(2). (June 4, 2019, Order.)1
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`On July 25, 2019, without motion or explanation, plaintiffs next filed an amended
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`complaint in which they again named all of the original defendants, including the
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`previously dismissed Group A defendants. (Dkt. #45.) In response to the court’s inquiry
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`(dkt. #46), plaintiffs explained that their plan all along had been to dismiss the Group A
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`defendants, then to file an amended complaint adding them back in to perfect service (dkt.
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`#47). The court subsequently ordered plaintiffs to file a motion to seek leave to file their
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`amended complaint (dkt. #49), which plaintiffs did on August 19, 2019 (dkt. #52).
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`In an order addressing both defendants’ motion to dismiss for failure to state a claim
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`and plaintiffs’ motion to amend, the court granted the former and denied the latter on the
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`grounds that: (1) plaintiffs’ original complaint failed to identify the product at issue
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`adequately; and (2) plaintiffs’ proposed amended complaint would be futile since it
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`suffered from the same defect. (Dkt. #59.) However, this dismissal was without prejudice,
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`and plaintiffs’ subsequently sought leave to file another amended complaint in which they
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`1 For some unknown reason, this text order was not formally assigned a docket number, but can be
`found in the case docket entries between dkt. ##42 & 43.
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`Case: 3:19-cv-00273-wmc Document #: 104 Filed: 02/17/22 Page 4 of 8
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`again named both the Group A and Group B defendants. (Dkt. #60.) The court granted
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`this motion on March 10, 2021. (Dkt. #72.)
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`On March 31, 2021, the Group A defendants then moved to dismiss the amended
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`complaint, arguing that plaintiffs still had not served them and this lack of timely service
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`leaves the court without personal jurisdiction over them. (Dkt. #77.) Plaintiffs responded
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`that they were “diligently working to prefect service” on the defendants (dkt. #95), and
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`between April 20, 2021, and June 1, 2021, plaintiffs proceeded to file affidavits of service
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`for each of the four Group A defendants (dkts. #94, 96, 99, 100).
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`OPINION
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`Under the Federal Rules of Civil Procedure, a plaintiff in a federal lawsuit must
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`ensure that each defendant named in the suit receives a copy of the summons and
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`complaint. Fed. R. Civ. P. 4(b), (c). Service requirements are important as they “provide
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`notice to parties, encourage parties and their counsel to pursue their cases diligently, and
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`trigger a district court's ability to exercise jurisdiction over a defendant.” Cardenas v. City
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`of Chicago, 646 F.3d 1001, 1005 (7th Cir. 2011) (internal citations omitted). The time for
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`proper service of process is governed by Federal Rule of Civil Procedure 4(m), which
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`provides:
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`If a defendant is not served within 90 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.
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`Case: 3:19-cv-00273-wmc Document #: 104 Filed: 02/17/22 Page 5 of 8
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`Fed. R. Civ. P. 4(m). The same 90-day period “applies where suits are removed to federal
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`court from state court, except that the period commences upon the date of removal.”
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`Cardenas, 646 F.3d at 1004.
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`Here, plaintiffs have waived any argument that their first complaint was properly
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`served on the Group A defendants. This is because plaintiffs never responded to the Group
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`A defendants’ argument that service was improper, effectively choosing instead to amend
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`their complaint to dismiss them from the suit. See Bonte v. U.S. Bank, N.A., 624 F.3d 461,
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`466 (7th Cir. 2010) (failure to respond to argument constitutes waiver). The issue at hand,
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`therefore, is whether plaintiffs have now corrected their initial failure to serve by obtaining
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`leave to rename the Group A defendants in an amended complaint and then ultimately
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`serving them.
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`A closely analogous situation was addressed by the United States Court of Appeals
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`for Seventh Circuit in UWM Student Ass'n v. Lovell, 888 F.3d 854 (7th Cir. 2018). In that
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`case, the plaintiffs had also initially filed suit in state court and the case was subsequently
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`removed to federal court. Id. at 857. After removal, the district court dismissed a number
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`of defendants because they had not been properly served. Id. at 858. Later, the district
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`court gave plaintiffs leave to file an amended complaint, in which plaintiffs attempted to
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`rename most of those same dismissed defendants. Id. at 858. Eventually, plaintiffs also
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`filed affidavits showing service on these defendants, although none of the affidavits
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`Case: 3:19-cv-00273-wmc Document #: 104 Filed: 02/17/22 Page 6 of 8
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`established service either before removal or within 120 days after removal.2 Id. Ultimately,
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`the district court again dismissed the defendants for lack of timely service. Id.
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`In affirming the district court’s decision in UWM Student Association, the Seventh
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`Circuit held that a plaintiff must either serve defendants before removal in accordance with
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`the law of the forum state or after removal within the period set by Federal Rule of Civil
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`Procedure 4(m). 888 F.3d at 858. Moreover, the court explained that “filing an amended
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`complaint does not restart the clock for serving defendants who are added to an amended
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`complaint after having been dismissed from a prior one.” Id. at 859 (emphasis added).
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`Even so, presumably because this dismissal was without prejudice under Rule 4(m), the
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`Seventh Circuit noted that a district court is required to extend the service window if good
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`cause is shown for the failure to serve timely, and also grants a district court discretion to
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`extend that window even absent good cause. Id. However, the court of appeals concluded
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`on the facts before it in UWM Student Association that the district court’s refusal to extend
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`the service window was not required nor an abuse of discretion under Rule 4. Id.
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`Plaintiffs waived any argument that the original complaint was properly served on
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`the Group A defendants before the case was removed on April 11, 2019, and so plaintiffs
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`had until July 10, 2019 (90 days after removal), to perfect service. Choosing instead to
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`dismiss the Group A defendants voluntarily on June 3, 2019, plaintiffs did not even
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`attempt to rename those until July 25, 2019, and even then by a legally deficient pleading.
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`2 Under the version of Rule 4(m) that was in effect during this case, a plaintiff had 120 days to
`serve a defendant after the complaint is filed or after removal. UWM Student Ass’n, 888 F.3d at
`858 (citing Fed. R. Civ. P. 4(m) (2007)). After a revision in 2015, however, this window was revised
`to 90 days as explained in the “Background” discussion above. Fed. R. Civ. P. 4(m) (2015).
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`Case: 3:19-cv-00273-wmc Document #: 104 Filed: 02/17/22 Page 7 of 8
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`In fairness, this court did ultimately grant plaintiffs leave to file an amended complaint on
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`March 10, 2021, in which among other things timely renamed the Group A defendants as
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`parties. As in UWM Student Association, however, this amended complaint did not restart
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`the 90-day clock. Nor have plaintiffs identified to this day good cause for their failure to
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`serve the Group A defendants timely. Accordingly, this court is certainly not required under
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`Rule 4 to extend plaintiffs’ deadline.
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`This leaves the question as to whether this court should exercise its discretion to do
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`so. Again, plaintiffs make no compelling case and the Group A defendants argue
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`reasonably enough that plaintiffs’ essentially more than two-year delay in accomplishing
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`service from their original deadline is simply too long to merit bringing them back into this
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`lawsuit. However, the specific facts of this case warrant keeping the Group A defendants
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`in this suit. The Group A defendants have clearly been aware of this case since its
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`inception, suggesting that relation back could be appropriate. Even if the court were to
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`dismiss the Group A defendants under Rule 4(m), it would be without prejudice,
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`potentially giving plaintiffs another opportunity to sue.
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`More importantly, all defendants in this case, including both Group A and B, have
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`been represented by the same lead counsel, underscoring the joint nature of their defense
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`and substantially reducing any actual prejudice to the Group A defendants being required
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`to defend under whatever schedule the Magistrate Judge should choose to allow this matter
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`to proceed to summary judgment and trial on January 9, 2023. At this stage and under
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`the unique circumstances of the litigation, therefore, it is most practical and more
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`reasonable to include the Group A defendants despite woefully late service and allow this
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`case to be decided on its merits as to all the named defendants.
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`Finally, plaintiffs’ delay is not without penalty, as the court will be extremely
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`unlikely to grant them any request for further delay in prosecuting their claims, while it
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`will be at least somewhat tolerant of requests for accommodation of the Group A
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`defendants’ similar requests based on proof of any actual prejudice.
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`ORDER
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`IT IS ORDERED that Four Star Oil and Gas Company’s (f.k.a. Getty Oil
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`Company), Shell Chemical L.P.’s, Sunoco (R&M), LLC’s, and Texaco Downstream
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`Properties, Inc.’s motion to dismiss (dkt. #77) is DENIED.
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`Entered this 17th day of February, 2022.
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`BY THE COURT:
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`/s/
`__________________________________
`WILLIAM M. CONLEY
`District Judge
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