Burkes v. Fas-Chek Food Mart Inc., 217 W. Va. 291

Summary

The Supreme Court of Appeals of West Virginia held that the plaintiff demonstrated good cause under West Virginia Rule of Civil Procedure 4(k) for failing to complete service within 120 days. The court also held that, even absent good cause, the rule permits a circuit court to extend the service period in its discretion, and it reversed and remanded the dismissal without prejudice.

Holdings

1. Service of process on a domestic corporation through the Secretary of State is insufficient when the certified mailing is neither accepted nor refused by an agent or employee of the corporation and is returned for another reason.
2. Under West Virginia Rule of Civil Procedure 4(k), a circuit court must extend the service period when the plaintiff shows good cause; even absent good cause, the court has discretion to extend the period upon motion or on its own initiative.
3. Burkes established good cause under Rule 4(k) for extending the time to serve Fas-Chek and reinstating the complaint.

Questions Presented

1. Whether service of process on a domestic corporation through the Secretary of State was sufficient when the certified mailing was returned without being accepted or refused.
2. Whether West Virginia Rule of Civil Procedure 4(k) permits a circuit court to extend the service period in the absence of good cause.
3. Whether Burkes established good cause for extending the time to serve Fas-Chek and reinstating her complaint.

Disposition

reversed_and_remanded