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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 5379 September Term, 1998

ANTOINE REED, ET AL. v. DANIEL CAGAN, ET AL.

Salmon, Eyler, Adkins, JJ.

Opinion by Adkins, J.

Filed: October 29, 1999

This case is an appeal from an order of the Circuit Court for Baltimore City granting a motion to dismiss the claims of Antoine Reed, appellant, against Daniel Cagan, Esq., appellee, on the ground of a two-year delay in the service of process after the filing of the complaint, and related procedural issues. On May 3, 1996, appellant filed a complaint for brain damage allegedly caused by exposure to lead-based paint at several houses owned by appellee. defendants. Several Appellant also sued more than twenty other defendants were served with process, and

discovery proceeded with respect to these defendants.

Appellee,

although a named defendant, was not served with process for more than two years. On or about May 5, 1998, appellee moved to dismiss the complaint alleging that he had not been served until April 6, 1998, and therefore the court was required to dismiss under Maryland Rule 2-507(b). On July 6, 1998, a hearing was held and the circuit Appellant asks us to consider

court dismissed the complaint.

whether the trial court erred in granting appellee's motion to dismiss with prejudice: 1) for lack of jurisdiction pursuant to Rule 2-507; and 2) on the ground that appellant failed to obtain a lift of a stay prior to a re-issue of summons and service. affirm the trial court's decision based on Rule 2-507 We and,

therefore, do not reach the second issue.

FACTS AND LEGAL PROCEEDINGS Appellant was born on May 6, 1975. Appellant's mother was a On May 3, against

tenant of 539 North Washington Street from 1977-78. 1996,1 appellant filed a fifty-eight count

complaint

numerous defendants alleging brain damage suffered from exposure to lead-based paint he ingested. As previously indicated, the case proceeded through the

pretrial process against several defendants, although appellee was not served with process. Appellee is a practicing Maryland

attorney with offices in downtown Baltimore.

Appellant was aware

of appellee's professional office address from at least November 1996, although no attempt to serve him at that address was made until 1998. On July 31, 1996, a pretrial conference order was entered, which set a discovery deadline of October 25, 1997, and a trial date of February 25, 1998. During 1996 and 1997 discovery was

conducted, some defendants were granted summary judgment, and at least one was dismissed by stipulation of appellant. On October 7,

1997, appellant filed a "Motion to Remove Case From [Pre-Trial Order]," alleging that "[t]he dates set forth in the . . . scheduling order are now moot in that all served Defendants are no longer part of the instant case." Appellant also maintained that

"due to the statute of limitations a dismissal of the action was

1

Appellant's twenty-first birthday was May 6, 1996. 2

not possible."

On November 17, 1997, the circuit court granted the

motion and handwrote on the order, "[c]ase stayed subject to Md. Rule 2-507." On February 27, 1998, appellant requested that the circuit court clerk re-issue process for service on appellee.2 1998, appellee was served with the summons, On April 6, and

complaint,

discovery requests.

On May 5, 1998, appellee filed a motion to

lift the stay for the limited purpose of filing a motion to dismiss and also filed a motion to dismiss. The motion sought dismissal

pursuant to Rules 2-322 (preliminary motions), 2-507(b) (lack of jurisdiction), and 2-113 (process). stated: Because this action was initiated [approximately] two years before this Defendant was `served' with `process,' this action must be dismissed under Maryland Rule 2-507(b). The writ of service was rendered ineffective under Maryland Rule 2-113 because of the inordinate gap between the filing of the Complaint and service upon this Defendant. . . . The inexcusable lapse of time from the initiation of the lawsuit requires that this [c]ourt dismiss the Complaint against this Defendant for lack of jurisdiction over his person, laches, limitations, ineffective process, [and] ineffective service of process. . . . On July 6, 1998, at the hearing, the court addressed the Summonses had previously been issued and re-issued for appellee Cagan on May 9, 1996, November 8, 1996, and December 3, 1997. The record contains no information about efforts by appellant to serve appellee at those times. Nor does the record suggest that appellee took any steps to evade service of process. 3
2

Specifically, the motion

motions to lift the stay and to dismiss as a combined issue. court dismissed appellant's claims against appellee, because: Service was not achieved . . . until long after Mr. Cagan's professional address became known. It seems to the [c]ourt that the Plaintiff has not been diligent in the pursuit of this lawsuit against the Defendant, Cagan. And because of that lack of diligence in pursuing this claim; and the fact that the service was achieved beyond the 120 days from the issuance of the original summons in this matter; and because we believe the Defendant, Cagan has suffered prejudice in his ability to defend this case, resulting from the delay in the prosecution of the matter; we grant the Defendant's Motion to Dismiss. This appeal was timely noted from the order of dismissal.

The

DISCUSSION Standard of Review When a party seeks dismissal of an action under Rule 2-507 ("Dismissal for lack of jurisdiction or prosecution"), the decision to grant or deny the dismissal is committed to the sound discretion of the trial court. (1987). See Powell v. Gutierrez, 310 Md. 302, 309-10

The trial court's decision will be overturned on appeal Stanford v. District Title

only "in extreme cases of clear abuse." Ins. Co., 260 Md. 550, 555 (1971).

The responsibility is on the

trial court to weigh and balance the rights, interests, and reasons of the parties in light of the public demand for prompt resolution of litigation. See Langrall, Muir & Noppinger v. Gladding, 282 Md. The primary focus of the inquiry should be on

397, 400 (1978).

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diligence and whether there has been a sufficient amount of it. See Stanford, 260 Md. at 555. The Court of Appeals has announced

that it "is totally committed to the proposition that `justice delayed is justice denied.'" Id. at 554.

I. The Record was Sufficient to Support the Trial Court's Holding That Appellee was Prejudiced by Appellant's Failure to Serve Him With Process for Two Years After the Filing of the Complaint. Appellant contends that the trial court erred in dismissing his suit on the ground of a delay in service pursuant to Rule 2507(b) because appellee failed to prove prejudice arising from the delay.3 We hold that under the present circumstances the trial

court acted within its discretion in dismissing appellant's suit even without a demonstration by appellee of the specific aspects of the harm suffered by him. We find helpful the analysis of Rule 2-507(b) by the United States District Court for the District of Maryland, which was called upon to apply the Rule in the quite similar case of Eccles v. National Semiconductor Corp., 10 F.Supp.2d 514 (D. Md. 1998). In Eccles, the plaintiff similarly failed to serve the defendant for approximately two years after filing the complaint. See id. at

Appellant's argument that appellee cannot file a motion with the court under Rule 2-507, and that dismissal under that Rule must be initiated by the clerk of court, is addressed in Section II of this opinion. 5

3

517.

A notice of contemplated dismissal pursuant to Rule 2-507 was

issued, and the plaintiff timely filed a motion to defer dismissal. See id. at 516. Subsequently, the defendant filed a notice of

removal in the United States District Court for the District of Maryland pursuant to 28 U.S.C.

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