Nathan Brada filed the motion to dismiss for failure to timely serve on April 21 in the U.S. District Court for the Southern District of West Virginia.
Brada claims that the plaintiff, John T. Viars, failed to perfect service of process upon him within 90 days of filing the complaint and to date has still not served him.
“Federal Rule of Civil Procedure 4(m) provides an outer limit for service upon defendants in federal proceedings,” the motion states. “As relevant here, that rules states that…’[i]f a defendant is not served within 120 days after the complaint is filed, the court…must dismiss the action without prejudice against that defendant or order that service be made within a specified time.’”
Because the action was removed to federal court on Nov. 20, and the last date for the plaintiff to timely serve Brada was March 21, according to the motion.
As a result, the court should dismiss the complaint against Brada pursuant to Rule 4(m).
Viars was employed by Greenbrier and its predecessors for more than four years and on April 27, 2015, his mother underwent open heart surgery, according to a complaint filed Sept. 8 in Wyoming Circuit Court and then removed to federal court.
Viars claims following the surgery, he took one week vacation to provide support and care for his mother.
On June 1, his mother’s condition worsened and she was moved from a nursing home to the hospital and Viars, who is the medical power of attorney for his mother, took the day off to care for her, according to the suit.
Viars claims when he returned to work the following day, he advised Brada that he had a doctor’s excuse for the missed day of work and Brada responded by stating that he “did not have time to deal with his … lies.”
A few days after returning to work, Viars was suspended for five days because Brada believed he took too long to perform an assigned task and, while on suspension, Viars was advised that Brada was upset with him for taking time off work to care for his mother, according to the suit.
Viars claims on June 18, he was advised he was being laid off and he was the only individual laid off from the mine on that day.
Greenbrier terminated Viars’ employment because he took qualifying leave under the Family and Medical Leave Act, according to the suit.
Viars claims the defendant violated the FMLA, retaliated against him and wrongfully terminated his employment.
Viars is seeking compensatory and punitive damages with pre-judgment interest. He is being represented by Richard W. Walters of Shaffer & Shaffer PLLC.
The defendants are represented by William E. Robinson and Katherine B. Capito of Dinsmore & Shohl LLP.
The case is assigned to District Judge Irene C. Berger.
U.S. District Court for the Southern District of West Virginia case number: 5:15-cv-15410