Developers Surety and Indemnity Company v. Kirkpatrick

UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
In Re 	)
)
THOMAS LAPOUR KIRKPATRICK 	) 	Case No. 25-10064
SUSAN HENNING KIRKPATRICK 	) 	Chapter 7
) 	Judge Buchanan
Debtor(s) 	)
)
)
DEVELOPERS SURETY AND 	) 	Adversary Case No. 25-1016
INDEMNITY COMPANY 	)
)
Plaintiff(s) 	)
v. 	)
)
THOMAS LAPOUR KIRKPATRICK 	)
Defendant(s) 	)
____________________________________)
OPINION AND ORDER: 1) DENYING MOTION TO DISMISS [Docket Number 16];
AND 2) GRANTING MOTION TO EXTEND TIME FOR SERVICE OF SUMMONS
AND COMPLAINT [Docket Number 17]
[This opinion is not intended for publication.]
This document has been electronically entered in the records of the United
States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
Dated: June 11, 2026
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This matter is before this Court on Defendant-Debtor Thomas Lapour Kirkpatrick
(“Debtor”)’s Motion to Dismiss Adversary Complaint [Docket Number 16] and Plaintiff
Developers Surety and Indemnity Company (“DSIC”)’s Memorandum in Response [Docket
Number 18]; and DSIC’s Motion to Extend Time for Service of Summons and Complaint and For
Leave to Issue Summons [Docket Number 17], Debtor’s Objection [Docket Number 19], and
DSIC’s Reply [Docket Number 20]. During a status conference held on January 15, 2026, the
parties requested that the Court determine the matter on the filings and documents of record along
with supplemental briefing and stipulations to be filed. In accordance with a scheduling order
[Docket Number 23], DSIC filed a supplemental brief [Docket Number 25] and the parties filed a
joint stipulation of fact [Docket Number 28]. Accordingly, this matter is now ripe for adjudication.
I. 	FACTUAL AND PROCEDURAL BACKGROUND
DSIC filed an adversary complaint initiating this adversary proceeding on April 21, 2025,
requesting that a debt owed to it by the Debtor be excepted from the Debtor’s discharge pursuant
to 11 U.S.C. 523(a)(4) and (a)(6) [Docket Number 28, ¶ 1; Docket Number 1 (“Complaint”)].
A Notice of Electronic Filing for the Complaint was issued through the Court’s CM/ECF
system on or about April 21, 2025 to counsel of record in the Debtor’s underlying bankruptcy case,
Case Number 25-10064 [Docket Number 28, ¶ 2]. Service of the Complaint, however, was not
completed on the Debtor within the time period set forth in Federal Rule of Civil Procedure
(“Rule”) 4(m) nor did DSIC move for an extension of time before the Rule 4(m) period expired
[Id., ¶¶ 3-4].
On October 22, 2025, approximately six months after DSIC filed the Complaint, the Debtor
filed a motion to dismiss the Complaint based on insufficient service of process [Id., ¶¶ 5-6; Docket
Number 16 (“Motion to Dismiss”)].
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On October 29, 2025, following receipt of the Motion to Dismiss, DSIC filed a motion
requesting to extend the time for it to issue a summons and serve the summons and complaint
[Docket Number 28, ¶ 7; Docket Number 17 (“Motion to Extend”)]. In the Motion to Extend,
counsel for DSIC, Watt, Tieder, Hoffar & Fitzgerald, LLP (“Watt Tieder”), asserts that issues
amounting to inadvertence caused its failure to serve the summons and complaint in a timely
manner. Watt Tieder supports these assertions with the affidavit of one of its attorneys, Brian
Padove and those assertions have not been disputed by the Debtor [Docket Number 17, Ex. A
(“Padove Aff.”)]. In the affidavit, Mr. Padove attests that miscommunications between Watt
Tieder and local counsel, Droder & Miller Co., LPA (“Local Counsel”), caused each to believe the
other was handling service of the complaint and summons [Padove Aff. ¶¶ 9-10]. In addition, the
attorney for Watt Tieder handling the preparation of the Complaint and day-to-day activities
following its preparation had serious medical issues around the time of the Complaint’s filing
impacting the attorney’s ability to work [Padove Aff. ¶ 8]. The medical issues caused the attorney
to depart unexpectedly from the law firm contributing to the service of process oversight [Id.].
Watt Tieder did not become aware of the failure to serve the summons and complaint until it
received the Debtor’s Motion to Dismiss on October 28, 2025 [Padove Aff. ¶ 11].
The parties agree that the Debtor did not evade service, but also that the service delay has
not caused any specific evidence to be lost nor has any witness become unavailable because of the
delay [Docket Number 28, ¶¶ 13-15]. The parties further agree that DSIC, during the period
between the filing of the Complaint and the filing of the Motion to Dismiss, was engaged in other
litigation and resolution discussions potentially impacting its claim against the Debtor [Id., ¶ 16].
Finally, both parties agree that the deadline to file a 11 U.S.C. § 523(c) complaint has expired [Id.,
¶ 12].
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II. 	JURISDICTION
This Court has jurisdiction pursuant to 28 U.S.C. § 1334(b) and Amended General Order
05-02 (Amended Standing Order of Reference) of the United States District Court for the Southern
District of Ohio entered pursuant to 28 U.S.C. § 157(a). This is a core proceeding pursuant to 28
U.S.C. § 157(b)(2)(I).
III. 	LEGAL ANALYSIS
DSIC failed to timely issue a summons and serve the summons and Complaint leading to
the Debtor filing a Motion to Dismiss DSIC’s Complaint for insufficient service of process. See
Fed. R. Civ. P. 12(b)(5) (made applicable to bankruptcy adversary proceedings by Federal Rule of
Bankruptcy Procedure (“Bankruptcy Rule”) 7012(b)). DSIC requests that, rather than dismiss the
Complaint, the Court grant it an extension of time to perfect service of the Complaint under Federal
Rule of Civil Procedure (“Civil Rule”) 4(m) made applicable to bankruptcy adversary proceedings
by Bankruptcy Rule 7004(a)(1). The resolution of the dispute requires this Court to examine Civil
Rule 4(m) which supplies both the deadline for a plaintiff to serve a complaint on a defendant and
the standard for granting the plaintiff an extension of that deadline.
Civil Rule 4(m) provides:
If a defendant is not served within 90 days after the complaint is filed, the court—
on motion or on its own after notice to the plaintiff—must dismiss the action
without prejudice against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). In this matter, the 90-day deadline for DSIC to serve the Complaint under
Civil Rule 4(m) expired on July 21, 2025.1 DSIC did not serve the complaint within this deadline
1 The 90-day period ended on July 20, 2025, a Sunday. Consequently, the period was automatically extended to the
following Monday, July 21, 2025, pursuant to Fed. R. Bankr. P. 9006(a)(1)(C).
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nor did it seek to extend the deadline until October 29, 2025 or approximately 100 days after the
90-day deadline expired.
While DSIC missed the deadline to serve the Debtor with the Complaint, Civil Rule 4(m)
provides two ways that the deadline may be extended. First, if a plaintiff demonstrates good cause
for the failure, a court must extend the deadline for an appropriate period. Fed. R. Civ. P. 4(m).
Although Civil Rule 4(m) does not define “good cause,” it has been held to mean “‘a reasonable,
diligent effort to timely effect service of process.’” Johnson v. Smith, 835 F. App’x 114, 115 (6th
Cir. 2021) (citing Pearison v. Pinkerton’s Inc., 90 F. App’x 811, 812-13 (6th Cir. 2004)). Good
cause may exist where “something outside the plaintiff’s control prevents timely service” such as
when a defendant intentionally evades service or an unrepresented plaintiff suffers from a serious
illness. Savoie v. City of East Lansing, Case No. 21-2684, 2022 U.S. App. LEXIS 23854, at *10,
2022 WL 3643339, at *4 (6th Cir. Aug. 24, 2022). However, mere mistakes of counsel, such as an
inadvertent failure to serve, is insufficient to establish good cause. Savoie, 2022 U.S. App. LEXIS
23854, at *10, 2022 WL 3643339, at *4; Johnson, 835 F. App’x at 115.
In this instance, DSIC does not establish good cause. The main reason for its failure to
serve the Complaint was inadvertence based on miscommunications between its main counsel,
Watt Tieder, and Local Counsel regarding which firm was handling service. Although this Court
understands that a key attorney’s illness and sudden departure from Watt Tieder played a part in
the error, Watt Tieder did not provide a sufficient explanation for why the law firm did not
subsequently review the case and discover the lack of service prior to the Debtor filing a Motion
to Dismiss six months after the Complaint was filed. Such inadvertence and mistakes of counsel
are not sufficient to establish good cause requiring the extension of the deadline.2
2 These types of attorney errors also fail to rise to the level of excusable neglect. See Barron v. Univ. of Mich., 613 F.
App’x 480, 487 (6th Cir. 2015) (noting that “case law consistently teaches that out-and-out lawyer blunders—the type
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Nonetheless, even absent good cause, this Court retains discretion under Civil Rule 4(m)
to extend the deadline. Fed. R. Civ. P. 4(m); United States v. Oakland Physicians Med. Ctr., LLC,
44 F.4th 565, 568 (6th Cir. 2022). In Oakland Physicians, the Sixth Circuit announced seven
factors a court should consider and balance when assessing whether to exercise its discretion to
enlarge the service of process period in the absence of good cause:
(1) whether an extension of time would be well beyond the timely service of
process;
(2) whether an extension of time would prejudice the defendant other than the
inherent prejudice in having to defend the suit;
(3) whether the defendant had actual notice of the lawsuit;
(4) whether the court’s refusal to extend time for service substantially prejudices
the plaintiff, i.e., would the plaintiff’s lawsuit be time-barred;
(5) whether the plaintiff had made any good faith efforts to effect proper service of
process or was diligent in correcting any deficiencies;
(6) whether the plaintiff is a pro se litigant deserving of additional latitude to correct
defects in service of process; and
(7) whether any equitable factors exist that might be relevant to the unique
circumstances of the case.
Oakland Physicians, 44 F.4th at 569. This Court assesses each of these seven factors as
follows:
1) 	Whether an Extension of Time Would Be Well Beyond the Timely Service of
Process: As previously noted, the 90-day deadline for DSIC to serve the Complaint
under Civil Rule 4(m) expired on July 21, 2025. DSIC did not serve the complaint
within this deadline nor did it seek to extend the deadline until October 29, 2025 or
of action or inaction that leads to successful malpractice suits by the injured client—do not qualify as ‘mistake’ or
‘excusable neglect’” (internal quotation marks and citations omitted)); In re Bonfiglio, No. 18-8004, 2018 Bankr.
LEXIS 3281, at *11, 2018 WL 5295879, at *4 (B.A.P. 6th Cir. Oct. 24, 2018).
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approximately 	100 	days 	after 	the 	90-day 	deadline 	expired. 	The 	delay 	is
considerable and, as DSIC concedes, weighs against granting the extension.
2) 	Whether an Extension of Time Would Prejudice the Defendant Other Than
the Inherent Prejudice in Having to Defend the Suit: The Debtor asserts that he
has been prejudiced by the lengthy time it is taking to obtain his fresh start. While
this is a legitimate cause for concern, the Debtor did receive a discharge from other
debts on July 8, 2025 and the Debtor’s Chapter 7 case has remained active well
beyond the six-month period of DSIC’s inactivity making the impact of this
particular delay unclear. Furthermore, the Debtor did not file a brief or evidentiary
materials to support that he suffered any specific prejudice or injury caused by the
delay in service. This Court concludes that this factor does not favor either party.
3) 	Whether the Defendant Had Actual Notice of the Lawsuit: While the Complaint
was not timely served on the Debtor, Debtor’s counsel in the bankruptcy case did
receive electronic notice of the filing of the Complaint soon after it was filed
through the Court’s CM/ECF system. Because this provided actual notice soon after
the Complaint was filed, this factor favors granting the requested extension.
4) 	Whether the Court’s Refusal to Extend Time for Service Substantially
Prejudices the Plaintiff, (i.e., would the plaintiff’s lawsuit be time-barred):
The parties agree that the deadline for filing a complaint to determine whether a
debt is non-dischargeable under 11 U.S.C. § 523(c), which covers the types of
claims asserted in DSIC’s complaint, has already expired. Should this Court refuse
to extend DSIC’s time to serve the Complaint, DSIC would be time-barred from
re-asserting its claims. This factor weighs heavily in favor of granting the extension.
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5) 	Whether the Plaintiff Had Made Any Good Faith Efforts to Effect Proper
Service of Process or Was Diligent in Correcting Any Deficiencies: After filing
its Complaint on April 21, 2025, DSIC took no action to issue a summons or serve
its Complaint until after the Debtor filed its Motion to Dismiss on October 22, 2025.
Its lack of action for the six-month period following the filing of the Complaint
weighs against granting the extension.
6) 	Whether the Plaintiff Is a Pro Se Litigant Deserving of Additional Latitude to
Correct Defects in Service of Process: DSIC, the plaintiff in this matter, was
represented 	by 	counsel 	and, 	thus, 	this 	factor 	is 	not 	applicable 	to 	these
circumstances.
7) 	Whether Any Equitable Factors Exist That Might Be Relevant to the Unique
Circumstances of the Case: Although not the main reason for the missed deadline,
this Court takes into consideration that a contributing factor was the severe illness
and unanticipated departure of a key attorney in charge of this matter for DSIC at
or around the time the Complaint was filed. This Court also takes into consideration
that upon realizing its error after receiving the Debtor’s filing of the Motion to
Dismiss, DSIC’s attorneys acted quickly to respond and request an extension.
Finally, this Court recognizes that following the filing of the Complaint, DSIC was
actively engaged in other litigation and discussions which may impact its claim
against the Debtor. As such, while there was a lull in this adversary proceeding,
some effort was being made to address factors that may ultimately bear on and
advance the litigation in this case. Accordingly, this Court concludes that these
equitable factors weigh in favor of granting the extension.
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Overall, three factors weigh in favor of granting an extension, two weigh in favor of
denying it, and two are neutral. After weighing each of the Oakland Physicians factors, this Court
concludes that a brief extension of time for DSIC to complete service in this adversary proceeding
is warranted. Of particular significance to this Court is the substantial prejudice to DSIC if the time
for service under Rule 4(m) is not extended and this adversary proceeding is dismissed given that
DSIC would be time-barred from refiling its non-dischargeability claims under §§ 523(a)(4)
and (6). See 11 U.S.C. § 523(c) and Fed. R. Bankr. P. 4007(c). Granting an extension of time to
effectuate service also is consistent with the Sixth Circuit’s preference for resolving disputes on
their merits rather than procedural or technical grounds. See Hursey v. Long (In re Long), 677 B.R.
77, 103 (Bankr. S.D. Ohio 2026) (citations omitted).
This Court certainly does not condone DSIC’s lax oversight and neglectful prosecution of
this adversary proceeding. It has added unnecessary delay and expense to this litigation. That said,
once made aware of its error by the Debtor, DSIC acted promptly to seek leave of court to rectify
the situation. This Court expects that DSIC will promptly and properly effectuate service and,
going forward, be keenly focused on resolving or otherwise advancing this litigation towards
conclusion.
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IV. 	CONCLUSION
For the foregoing reasons, the Debtor’s Motion to Dismiss is denied and DSIC’s Motion
to Extend Time is granted. DSIC shall cause a summons to be issued and serve the summons and
Complaint on the Debtor and Debtor’s attorney3 on or before June 25, 2026 and shall promptly
file a certificate of service.
If DSIC fails to comply with the requirements of this Order, this case will be
dismissed.
SO ORDERED.
Distribution List:
Donald A. Lane, Esq.
Brian Padove, Esq.
Eric W. Goering, Esq.
3 In addition to service on the defendant-debtor, DSIC must serve the summons and complaint on the defendant-
debtor’s counsel. See Fed. R. Bankr. P. 7004(g); Long, 677 B.R. at 94-95. Service through the Court’s CM/ECF system
is not sufficient to accomplish this additional service requirement. Long, 677 B.R. at 94-95 (noting that ECF
Procedures 2(e) and 9(a)(1) of the Court’s Administrative Procedures for Electronic Case filing essentially require
that a paper copy of the summons and complaint be served on debtor’s counsel).
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