UNITED STATES BANKRUPTCY COURT
|DO NOT PUBLISH
This case disposition has no value as precedent and is not intended for publication. Any publication, either in print or electronically, is contrary to the intent and wishes of the court.
NORTHERN DISTRICT OF CALIFORNIA
RAYMOND GOFORTH, No. 99-1073
v. A.P. No. 99-1073
Memorandum on Motion to Dismiss
In this adversary proceeding, plaintiff Vergie Elliot alleges that some sort of conduct of debtor
and defendant Raymond Goforth justifies declaring his debt to Elliot nondischargeable under section
523(a)(2) of the Bankruptcy Code. The complaint itself contains no specific allegations, but instead
refers to a state court action he filed against Goforth arising out of the remodeling of Elliot's residence
and an accusation filed against Goforth in contractors' license proceedings. The allegations supporting
fraud in these documents is either non-existent or weak; they mostly speak to breach of contract,
negligence, and poor workmanship.
Elliot filed this action on April 12, 1999, which was the last day to file dischargeability actions.
However, he made no effort to serve it until May 11, 1999, when he attempted to serve it by delivering
a copy to Goforth's attorney. By then, the 10-day life of the summons had long since expired and in
any event that is not a proper method of service under FRBP 7004(b). Elliot then attempted service on
June 14, 1999, by mailing a copy of the long-dead summons and the complaint to Goforth alone.
Finally, on September 22, Elliot obtained an alias summons and served it on September 28, 1999, which
was some 168 days after the complaint was filed. Goforth's motion to dismiss pursuant to FRCP 4(m),
made applicable to this adversary proceeding by FRBP 7004(a), is now before the court.
The court begins its analysis by noting that Elliot's case is of very dubious merit. The fact that
Goforth violated state contract laws does not render a resulting debt nondischargeable. In re
, 644 F.2d 756 (9th
Cir. 1981). Even the most inept and damaging performance of a
contracting job does not establish grounds for nondischargeability. In re Kaufmann
, 57 B.R. 644
(Bkrtcy.E.D.Wis.1986). The court is accordingly not inclined to excuse tardy prosecution of the case
unless it must.
The leading case interpreting Rule 4(m) is In re Kirkland
, 86 F.3d 172 (10th
case, pro per plaintiffs failed to effect proper service of a dischargeability complaint until 121 days after
it was filed. The court of appeals affirmed the bankruptcy court's dismissal of the complaint, holding
that the "good cause" requirement of the rule is something more than "excusable neglect" and does not
encompass inadvertence, negligence, or mistake of counsel. 86 F.3d at 175, 176; see also In re Casey
198 B.R. 918 (Bkrtcy.S.D.Cal.1996). The mere fact that the debtor may have learned about the filing
before the deadline due to the bungled attempts at service does not relieve the plaintiff of the
consequences of failing to timely effect proper service. In re Hall
, 222 B.R. 275 (Bkrtcy.E.D.
The court recognizes that it has the power to allow the complaint to go forward despite the lack
of cause. If Elliot had a stronger case, or presented any sort of extenuating circumstances, the court
would consider doing so. However, the complaint in this case does not evidence even the slightest
attempt to determine applicable federal law and appears to be the result of filing first and justification
later. The court accordingly will not permit the matter to go forward.
For the foregoing reasons, Goforth's motion will be granted and this adversary proceeding will
be dismissed. Counsel for Goforth shall submit an appropriate form of order.
Dated: November 19, 1999 ____________________________
United States Bankruptcy Judge
1. The rule was then Rule 4(j). Its substance remains essentially the