Memorandum of Decision Re: Failure to Promptly Serve Complaints

DO NOT PUBLISH This case disposition has no value as precedent and is not intended for publication.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.
In re RAYMOND GOFORTH,                                           No. 99-1073      Debtor(s). ______________________________________/ VERGIE ELLIOT,      Plaintiff(s),    v.                                                                               A.P. No. 99-1073 RAYMOND GOFORTH,      Defendant(s). _______________________________________/
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 Pedrazzini, 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 Cir. 1996).(1) In that 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. Va.1998).      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                                                                   ____________________________                                                                                                                Alan Jaroslovsky                                                                                                                United States Bankruptcy Judge

1. The rule was then Rule 4(j). Its substance remains essentially the