David Johnson v. Joseph Smith

Case Type:
Case Status:
20-5505 (6th Circuit, Jan 28,2021) Not Published
The plaintiff's failure to serve a summons on a defendant in a defendant in an adversary proceeding as required by Fed. R. Bankr. P. 7004(e), and failure to timely cure his failure to properly serve the defendant, was sufficient cause to dismiss the adversary proceeding.
Procedural context:
The plaintiff-appellant appealed the district court's decision affirming the bankruptcy court's decision dismissing the adversary proceeding for failure to prosecute.
David Johnson filed a complaint initiating an adversary proceeding against the debtor on August 28, 2018. The clerk of the bankruptcy court issued a summons on August 28, 2018. On September 13, 2018, 16 days after the summons was issued, the summons was delivered to the debtor's wife at their residence. When Johnson sought and received an entry of default from the clerk, the debtor moved to set it aside because Johnson had not served a copy of the summons and complaint on his attorney, as required by Bankruptcy Rule 7004(g). The bankruptcy court set aside the default under Bankruptcy Rule 7004(g) and (e), which requires service within seven days of the date on which it is issued. On February 11, 2019, the bankruptcy court ordered Johnson to appear and show cause why the adversary proceeding should not be dismissed for failure to prosecute. Eight days before the hearing, Johnson requested service of an alias summons, which the bankruptcy clerk sent by United States mail. Three weeks later, on April 8, 2019, the debtor moved to have the case dismissed because Johnson had not completed proper service within 90 days, as required by Fed. R. Civ. P. 4(m). Johnson argued that the September 13 service gave the debtor actual notice, and constituted "good cause" for extension of the service deadline. The bankruptcy court rejected Johnson's arguments.

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