All is not lost for plaintiffs who fail without “good cause” to serve notice to defendants within 90 days of filing suit, a federal appeals court ruled this week in litigation brought by the parents of a woman who killed herself while in custody at the Baltimore County Detention Center in 2013.
In a published decision, the 4th U.S. Circuit Court of Appeals said the 90-day deadline is not absolute because federal district judges have discretion to extend the time limit despite having found that the plaintiff did not adequately try to serve notice.
However, the 4th Circuit did not specify what factors a judge should consider in deciding whether to excuse the inadequate attempt.
The 4th Circuit’s decision revived the parents’ effort to include five former detention center health care workers as defendants in their five-and-a-half-year-old, $15 million lawsuit alleging that staffers ignored their daughter Ashleigh Gelin’s unstable mental condition and placed her in unmonitored solitary confinement instead of providing her necessary treatment.
The five workers are among 14 named defendants – including Baltimore County – in the lawsuit filed Nov. 11, 2016, in U.S. District Court in Baltimore.
U.S. District Judge George L. Russell III had dismissed the five workers from the lawsuit in 2018 after concluding that the failure to serve them notice in time was without “good cause,” as required under the Federal Rules of Civil Procedure. Russell faulted attorneys for having served notice on someone they unreasonably believed was the workers’ agent and having not taken sufficient steps to discover the defendants’ addresses.
In its 3-0 decision, the 4th Circuit said Russell’s dismissal would have been final under the appellate court’s earlier holding that judges lacked discretion to validate notice after having found a lack of good cause for missing the notification deadline.
“But in light of our holding now, we find it necessary to vacate the district court’s dismissal of the [parents’] claims against the five health care provider defendants and remand to allow the court to consider in the first instance the parties’ arguments as to whether the court should exercise its discretion to extend the time for serving those defendants in the circumstances of this case, even though good cause was not shown,” Judge Paul V. Niemeyer wrote for the 4th Circuit.
Attorneys for the parents, Edward and Deborah Gelin, and sought-after defendants did not return telephone and email messages Thursday seeking comment on the 4th Circuit’s decision.
The Gelins are represented by Steven R. Freeman and Lee B. Rauch, of Freeman Rauch LLC in Towson. The five would-be defendants are represented by Eric M. Rigatuso, of Eccleston & Wolf PC in Hanover.
According to the parents’ lawsuit, detention center staff confined Gelin in a jail cell where she was not regularly monitored despite having expressed concern about not having received her medication for bipolar disorder. Gelin, who was beginning a one-year jail sentence for theft, hanged herself on Nov. 14, 2013, with a sheet that was left in the cell, the complaint stated.
She was 27.
“The actions of the BCDC staff in confining Ms. Gelin alone in an unmonitored jail cell with ready access to the means to take her life while not providing her with the necessary medical and mental health treatment and/or medication while incarcerated constituted deliberate, reckless and conscious indifference and disregard for Ms. Gelin’s life, safety and serious medical needs,” the complaint stated.
The lawsuit alleges wrongful death, negligence and violations of federal civil rights law and the Maryland Declaration of Rights, and seeks $5 million in compensatory damages and $10 million in punitive damages. The defendants deny the allegations.
The parents’ attorneys claimed they had satisfied federal notice requirements for two of the five defendants by having hand-delivered the complaint and notice of litigation to the detention center’s administrator. The attorneys added that service was valid on the other three because “reasonable and diligent” efforts were made to locate their addresses, as required by the federal rules of procedure, but to no avail.
Russell correctly rejected those arguments by concluding that counsel should have known the administrator was not authorized to receive service of process documents and that a single effort to locate the defendants’ addresses does not qualify as reasonable and diligent, the 4th Circuit held.
The appeals court then sent the issue back to Russell to determine whether the plaintiffs should have more time to serve notice despite the judge having found a lack of good cause for missing the deadline.
The sought-after defendants are Kyle Shuman, Jennifer Sevier, Roselor Saint Fleur, Diane Bahr and Victoria Titus.
Niemeyer was joined in the opinion by Judges Albert Diaz and A. Marvin Quattlebaum Jr.
The 4th Circuit rendered its decision in Edward and Deborah Gelin v. Kyle Shuman et al., No. 21-1498.
The pending lawsuit in U.S. District Court is captioned Deborah and Edward Gelin v. Baltimore County et al., 1:16-cv-03694-ADC.