Griffith v. Blankenship et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ELISHA L. GRIFFITH
Plaintiff,
v.
CHANCE BLANKENSHIP, et al.,
Defendants.
Case No. 1:24-cv-307
JUDGE DOUGLAS R. COLE
OPINION AND ORDER
Defendants Chance Blankenship, Pam Wagner, and City of Ironton, Ohio,
(collectively, Defendants) have moved this Court to dismiss Plaintiff Elisha L.
Griffith’s Complaint under Federal Rule of Civil Procedure 12(b)(5)1 for untimely
service. (Doc. 12). Given that Griffith complied with the Court’s extended deadline in
serving Defendants, and the Court’s strong preference to decide matters on the
merits, the Court DENIES the motion.
BACKGROUND
Griffith filed this suit on June 1, 2024. (Doc. 1). She failed, however, to serve
the Defendants in the required ninety days. Fed. R. Civ. P. 4(m). So, some eight
months into the case, she moved the Court to provide her an additional twenty-eight
days in which to effectuate service. (Doc. 2). In her motion, Griffith explained that,
after 	filing 	suit 	in 	this 	matter, 	her 	counsel 	contacted 	“likely 	counsel 	for 	the
1 When deciding a Rule 12(b)(5) motion, the Court may refer to record evidence to determine
the sufficiency of service, including “uncontroverted affidavits.” Metro. Alloys Corp. v. State
Metals Indus., Inc., 416 F. Supp. 2d 561, 563 (E.D. Mich. 2006).
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Defendant[s] to discuss service of process,” including a discussion of waiving service,
but admits they did not reach a “formal agreement on the same.” (Id. at #14).
Based on those facts, Griffith pressed two different arguments in support of
the requested extension. First, she noted that Rule 4(m) requires the Court to grant
an extension on a showing of good cause. (Id.). And she said good cause existed here
because (1) she “was conducting [an] investigation in an effort to save … the time of
multiple motions related to amendment of the complaint” and (2) “each known
Defendant is aware of this suit by previously agreeing to waive service of the
summons.” (Id. at #15). Separately, she argued that, even absent a showing of good
cause, the Court still has discretion to grant the extension. And here, the “equitable
factors 	traditionally 	relied 	upon 	by 	the 	District 	Court[s]” 	warranted 	such 	a
discretionary extension. 2 (Id. at #16).
The Court granted Griffith’s motion by notation order, permitting her until
March 18, 2025, to serve the defendants. (2/18/25 Not. Order). All three defendants
were served on March 18, 2025, the last day Griffith could do so. (Docs. 8–10).
Twenty-two days after being served, Defendants collectively moved to dismiss
the Complaint under Federal Rule of Civil Procedure 12(b)(5) for Griffith’s failure to
serve them within the ninety days required by Rule 4(m). (Doc. 12, #47). There,
2 Griffith lists and discusses five factors traditionally considered in this District. (Doc. 2, #16).
However, more recent Circuit precedent has established seven factors to be considered, the
first five of which are substantially similar to the factors cited by Griffith here. See United
States v. Oakland Physicians Med. Ctr., LLC, 44 F.4th 565, 569 (6th Cir. 2022).
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Defendants recounted additional facts regarding the parties’ communications about
service in an effort to show that Griffith’s delay was unjustified. (Id. at #45–47).
According to Defendants, the story goes something like this. On June 3, 2024,
(two days after Griffith filed suit) Griffith’s counsel reached out to Defendants’
counsel asking whether Defendants’ counsel would accept service on behalf of all
Defendants. (Id. at #45). Griffith’s counsel did so because he was aware that
Defendants’ counsel represented Defendants City of Ironton and Chance Blankenship
in an unrelated matter. 3 (Id.). In response, Defendants’ counsel “advised [Griffith’s]
counsel that it was not the firm[’]s practice to accept service on behalf of parties
‘especially given that Chance Blankenship and Pam Wagner are no longer with the
City and [she did] not yet know if/who [she] w[ould] represent.’” (Id. at #45–46
(quoting Frick Decl., Doc. 12-1, #59)). At the same time, Defendants’ counsel offered
to 	assist 	with 	waiving 	service 	if 	Griffith’s 	counsel 	sent 	service 	with 	waivers,
forwarding her a copy as well. (Id. at #46).
Defendants’ counsel heard nothing further (nor were any of the Defendants
served or asked to waive service) until August 29, 2024—coincidentally the ninety-
day deadline for service under Rule 4(m). (Id.). On that day, Griffith’s counsel
“inexplicably 	requested 	permission 	from 	[Defendants’ 	counsel] 	to 	sign 	waivers
himself on behalf of the Defendants. (Id. (emphasis in original) (citing Doc. 12-1, #58–
59)). Defendants’ counsel refused, informing Griffith’s counsel that this would be
3 Defendant Pam Wagner was also a defendant in that matter, (see Murphy v. McKnight, No.
1:23-cv-588 (S.D. Ohio)), but was not represented by Defendants’ counsel. Griffith’s counsel
represents the plaintiff in Murphy.
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improper under Federal Rule of Civil Procedure 4(d). (Id. (citing Doc. 12-1, #58)).
Griffith’s counsel simply responded by forwarding the Complaint and waivers to
Defendants’ counsel the next day; Defendants’ counsel heard nothing further for over
three months. (Id.).
Finally, on December 11, 2024, Griffith’s counsel asked: “With respect to
Griffith, where do we stand on the waivers of service? I know we sent them to you on
August 30. The Court reached out to me yesterday about service, so I need to give
them a response.” (Id. (quoting Doc. 12-1, #68)). Defendants’ counsel responded, again
informing Griffith’s counsel that none of the Defendants had been served; that she
still could not definitively say whether her office would be representing Defendants
Blankenship and Wagner; that while she had offered to assist with getting waivers
signed, she could not accept service on behalf of everyone; and finally, that while the
deadline for service had passed, she was willing to discuss the issue with Griffith’s
counsel. (Id. at #46–47 (quoting Doc. 12-1, #67)). The following day, the attorneys
spoke and Griffith’s counsel “indicated that he would send notice and waivers to the
Defendants.” (Id. at #47). He did not do so. (Id.). Defendants’ counsel heard nothing
further until Griffith’s motion for extension of time and subsequent service of
Defendants on March 18, 2025. (Id.).
Based on these facts, Defendants largely argue the opposite of Griffith’s
(already granted) motion for an extension. (See generally id.). First, Defendants argue
that 	Griffith’s 	proffered 	reasons 	for 	good 	cause 	were 	factually 	unsupported—
“Defendants are aware of no such ‘investigation’ and there is simply no evidence that
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‘each known Defendant’ was aware of the suit or that they previously agreed to waive
service of summons.” (Id. at #45). They then point out that Griffith “delayed timely
service in the instant case by over six months beyond the federal prescribed limit [of
ninety days],” and that she has not demonstrated good cause. (Id. at #49–55).
Defendants also argue that the equitable factors courts consider in granting a
discretionary extension when good cause is not present did not favor such an
extension. (Id.); see Oakland Physicians Med. Ctr., LLC, 44 F.4th at 569.
Griffith responded to that motion to dismiss, attempting to add more factual
context. (Doc. 15, #74–75). For example, she explained that before she filed suit, her
counsel had reached out to Defendants’ counsel “no less than six times” about a “pre-
suit resolution of this matter.” (Id. at #74 (emphasis removed)). Other than an initial
telephone call, those communications largely went unanswered. (Id.). Griffith then
largely restates the facts detailed by Defendants, but instead interprets those same
facts as demonstrating that “Defendants’ counsel volunteered to assist in having her
clients execute waivers under their duty pursuant to Fed. R. Civ. P. 4(d)(1).” (Id. at
#75). Finally, she explains that her counsel was “dealing with a family medical
emergency” in January and February, a fact that Defendants’ counsel and the Court
were aware of when Griffith filed the motion to extend the service deadline. (Id. at
#75, n.4). Griffith also, once again, argues that good cause existed, and that in the
alternative, the extension was a proper exercise of discretion. (Id. at #78–82). She
also maintains that the Court’s prior extension should stand. (Id. at #83). Defendants
have filed a Reply (Doc. 16), so this matter is ripe for the Court’s review.
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LEGAL STANDARD
In resolving a motion to dismiss for insufficient service under Rule 12(b)(5),
the burden is on the party asserting the validity of service to demonstrate that service
on the moving party “satisfied the requirements of the relevant portions of Rule 4 and
any other applicable provision of law.” Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir.
1987) (internal quotations and citations omitted); accord Robinson v. Tenn. Highway
Patrol, No. 1:16-cv-1296, 2017 WL 3234390, at *2 (W.D. Tenn. July 31, 2017). Federal
Rule of Civil Procedure 4(m) requires a plaintiff to serve a defendant within ninety
days after filing her complaint. If a plaintiff fails to do so, but shows good cause for
that failure, the Court “must extend the time for service for an appropriate period.”
Fed. R. Civ. P. 4(m). Moreover, even “absent a finding of good cause, the court retains
discretion as to whether or not to enlarge that timeframe.” Oakland Physicians Med.
Ctr., LLC, 44 F.4th at 568. In exercising that discretion, district courts must consider
seven factors:
(1) whether an extension of time would be well beyond the timely service
of 	process; 	(2) whether 	an 	extension 	of 	time 	would 	prejudice 	the
defendant other than the inherent prejudice in having to defend the suit;
(3) whether the defendant had actual notice of the lawsuit; (4) whether
the court's refusal to extend time for service substantially prejudices the
plaintiff, i.e., would the plaintiff’s lawsuit be time-barred; (5) whether
the plaintiff had made any good faith efforts to effect proper service of
process or was diligent in correcting any deficiencies; (6) whether the
plaintiff is a pro se litigant deserving of additional latitude to correct
defects in service of process; and (7) whether any equitable factors exist
that might be relevant to the unique circumstances of the case.
Id. at 569.
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LAW AND ANALYSIS
Defendants argue that because Griffith did not serve them within ninety days
of filing her Complaint, and because she can neither show good cause for that delay
nor satisfy the Oakland Physicians factors, the Court should dismiss the case with
prejudice. 4 (Doc. 12, #44, 48–49). The Court disagrees. Given that Griffith properly
served the Defendants by the date the Court required in its previous order, (see
2/18/25 Not. Order), and the Court’s strong preference for resolving matters on the
merits, the Court denies Defendants’ Motion to Dismiss (Doc. 12).
As the party asserting the validity of service, the burden is on Griffith to
demonstrate that she effectuated service in accordance with Rule 4. Light, 816 F.2d
at 751. She has done so. Griffith properly served the Defendants by the March 18,
2025, deadline that the Court set. (Doc. 15, #75; see Docs. 8–10). True, service
occurred, as Defendants note, well outside the ninety-day period that Rule 4(m)
contemplates. (Doc. 12, #48). But “court[s] retain[] discretion as to whether or not to
enlarge that timeframe,” Oakland Physicians Med. Ctr., LLC, 44 F.4th at 568
(citation omitted), even where good cause is not present—and the Court used its
discretion to do that here, (see 2/18/25 Not. Order). Defendants’ motion largely fails
to even grapple with this fact.
Defendants perhaps come closest to addressing that flaw when they argue that
“[t]his Court’s exercise in discretion granting Plaintiff’s extension was based upon
4 Defendants do not explain why a dismissal for lack of service would be with prejudice.
Typically, when a court dismisses on that ground, the dismissal is without prejudice. See Fed.
R. Civ. P. 4(m).
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half-truths.” (Doc. 16, #129–30). According to Defendants, because “[t]he full set of
facts and Defendants’ objections” were not known to this Court when it granted the
extension, their “rights” should be “restore[d].” (Id. at #130). This may be an attempt
to ask the Court to reconsider its earlier order granting Griffith the extension. But
even if the Court construes Defendants’ motion as seeking such reconsideration, the
Court declines to grant it. See, e.g., Retamar-Lopez v. Dublin City Sch. Dist. Bd., No.
2:13-cv-161, 2013 WL 12130340, at *1 (S.D. Ohio June 27, 2013) (denying a motion
for reconsideration of the court’s extension of the time for service).
The Court acknowledges, as Defendants argue, that Griffith’s reasons for the
delay in service may fall short of the “reasonable, diligent effort” that generally
constitutes good cause. Johnson v. Smith, 835 F. App’x 114, 115 (6th Cir. 2021)
(quoting Pearison v. Pinkerton’s Inc., 90 F. App’x 811, 813 (6th Cir. 2004)). For
example, when Defendants’ counsel told Griffith’s counsel that “it was not the firm[’]s
practice to accept service on behalf of parties,” Griffith should have timely served the
individual defendants. (Doc. 12, #45). He did not do so. Indeed, he did not do much of
anything. It is difficult to characterize that as “good cause.”
But as Defendants acknowledge, a lack of good cause only means that an
extension is not mandatory. (Id. at #49). Courts retain discretion to extend the time
to effectuate service if the situation warrants it. See Oakland Physicians Med. Ctr.,
LLC, 44 F.4th at 568. That is what the Court did in February, (see 2/18/25 Not. Order),
and the Court declines to overturn that Order now. That is because, even had the
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Court known the full facts and arguments that the parties have put before it now, the
Court still would have exercised its discretion to grant the extension.
To see why that is so, consider the seven Oakland factors. The first one asks
whether service would be “well beyond the timely service of process.” Oakland
Physicians Med. Ctr., LLC, 44 F.4th at 569. Here, Griffith sought the extension
roughly five months after the time expired under Rule 4(m). That seems at least on
the cusp of “well beyond,” so that factor arguably favors Defendants. And Griffith is
represented by counsel, so the sixth factor—“whether the plaintiff is a pro se litigant
deserving of additional latitude to correct defects in service of process,” id.—lends
some support to Defendants’ position as well. But the rest of the factors do not.
Defendants point to no prejudice beyond delay in defending the suit (factor two); the
counsel 	to 	whom 	Griffith’s 	counsel 	directed 	his 	inquiries 	was 	representing
Defendants in another similar case, and ended up representing Defendants here, so
it is reasonable to conclude that Defendants had knowledge of the suit (factor three);
even assuming that the Ohio savings statute would apply here, see Webster v. Spears,
664 F. App’x. 535, 537 (6th Cir. 2016)—meaning Griffith would have a year to
refile5—the associated cost and delay arguably create prejudice to Griffith (factor
four), while providing no meaningful benefit to Defendants; while one could certainly
question Griffith’s “diligence,” it does appear that her counsel made at least some
ongoing efforts to move the service issue along (factor five); and the equities favor
5 Griffith states that “dismissal risks barring [her] claims due to the statute of limitations,”
and that if the matter was dismissed, she would have “approximately 24 hours to re-file this
matter.” (Doc. 15, #82). As far as the Court is aware, she would have a year to refile her suit.
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deciding this excessive force claim involving personal injuries—including a fractured
orbital bone, (see Doc. 15, #77 (depicting the alleged injury))—on the merits (factor
seven). On balance, these factors warrant the extension of time for service that
Griffith requested and that the Court granted.
CONCLUSION
Accordingly, the Court DENIES Defendants’ Motion to Dismiss (Doc. 12).
SO ORDERED.
December 16, 2025
DATE 	DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE
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