WEST VIRGINIA RECORD

CHARLESTON – The state Supreme Court has affirmed the Circuit Court of Cabell County’s granting of CSX Transportation's motion to dismiss a lawsuit brought against it due to the plaintiff’s counsel’s alleged failure to properly serve it with notice.

The memorandum decision was issued per curiam on March 29, with no justice claiming authorship.

Rick L. Martin filed a personal injury action against CSX on July 24, 2009. On Dec. 16, 2009, the circuit court filed a notice of intent to dismiss the action pursuant to Rule 4(k) of the West Virginia Rules of Civil Procedure, which provides that a defendant must be served within 120 days.

After Martin’s counsel failed to respond to the notice of intent to dismiss, the circuit court ordered the complaint dismissed on Feb. 9, 2010.

On Dec. 23, 2010, petitioner Martin’s counsel filed a motion to reinstate the case to the active docket “claiming that he did not receive notice of either the notice of intent to dismiss or the dismissal order,” the opinion states.

According to the opinion, the circuit court had inquired as to Martin’s counsel’s address and found that the address listed in the court file was the same address as counsel’s office. The opinion notes that the “failure of counsel to receive notice is unexplained.”

“He also claimed,” the opinion says, “that he was under the mistaken belief that out-of-state counsel was effectuating service on CSX, and he had no idea that there had been no service of process. A hearing was held on petitioner’s motion, but CSX did not appear. Although petitioner’s counsel claims to have mailed notice to CSX, he had no proof of mailing.

“On May 6, 2011, the circuit court entered an order reinstating the case, and petitioner served the complaint on May 23, 2011. In response, CSX filed its motion to dismiss, based on the lack of good cause pursuant to Rule 4(k) for the failure to serve CSX.

“The circuit court then dismissed the claim on Dec. 5, 2011, after a hearing, finding that the court has discretion to extend the period of service of process if there is good cause, but in this case, the court found no good cause.”

The petitioner then appealed to the state’s high court, arguing that the circuit court erred in granting CSX’s motion to dismiss, and by dismissing the case for failure to effectuate service timely seven months after petitioner served respondent pursuant to the circuit court’s grant of additional time for service.

“Petitioner argues that the circuit court could not reverse its own ruling and now deny an extension of time to effectuate service after it had already been granted. Respondent argues that circuit judges have authority to reverse their own rulings in the face of new facts or new considerations," the opinion says.

“Moreover, respondent argues that petitioner cannot show that the circuit court abused its discretion in declining to extend the time for service after the lengthy delay without good cause.

“Our review of the record reflects no clear error by the circuit court. The circuit court has the authority to reconsider its ruling in this matter based on new information. Further, the decision to grant the requested extension is discretionary and this Court finds no abuse of discretion herein.”