                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



Rick L. Martin,
                                                                                   FILED
                                                                                  March 29, 2013
Plaintiff Below, Petitioner                                                   RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
vs) No. 12-0040 (Cabell County 09-C-621)

CSX Transportation, Inc.
Defendant Below, Respondent


                              MEMORANDUM DECISION
      Petitioner Rick L. Martin, by counsel Scott Maddox, appeals the Circuit Court of Cabell
County’s “Order Granting Defendant CSX Transportation, Inc’s Motion to Dismiss” entered on
December 5, 2011. Respondent CSX Transportation, Inc. (“CSX”), by counsel Marc E. Williams
and Melissa Foster Bird, has filed its response. Petitioner has filed a reply.

       This Court has considered the parties= briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        On July 24, 2009, petitioner filed a personal injury action against CSX under the Federal
Employers’ Liability Act. Petitioner failed to serve CSX within 120 days. On December 16,
2009, the circuit court filed a notice of intent to dismiss the action pursuant to Rule 4(k) of the
West Virginia Rules of Civil Procedure for failing to properly serve the complaint, sending
notice to petitioner. On February 9, 2010, the circuit court ordered the complaint dismissed, after
petitioner failed to respond to the notice of intent to dismiss. On December 23, 2010, petitioner
filed a motion to reinstate the case to the active docket, claiming that he did not receive notice of
either the notice of intent to dismiss or the dismissal order1. He also claimed that he was under
the mistaken belief that out-of-state counsel was effectuating service on CSX, and he had no idea
that there had been no service of process. A hearing was held on petitioner’s motion, but CSX
did not appear. Although petitioner’s counsel claims to have mailed notice to CSX, he had no
proof of mailing. On May 6, 2011, the circuit court entered an order reinstating the case, and
petitioner served the complaint on May 23, 2011. In response, CSX filed its motion to dismiss,
based on the lack of good cause pursuant to Rule 4(k) for the failure to serve CSX. The circuit
court then dismissed the claim on December 5, 2011, after a hearing, finding that the court has
1
  The circuit court inquired as to petitioner’s counsel’s address and found that the address listed
in the court file was the same address as counsel’s office. The failure of counsel to receive notice
is unexplained.
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discretion to extend the period of service of process if there is good cause, but in this case, the
court found no good cause.

        On appeal, petitioner argues that the circuit court erred in granting respondent’s motion to
dismiss, and in dismissing the case for failure to effectuate service timely, seven months after
petitioner served respondent pursuant to the circuit court’s grant of additional time for service.
Petitioner argues that the circuit court could not reverse its own ruling and now deny an
extension of time to effectuate service after it had already been granted. Respondent argues that
circuit judges have authority to reverse their own rulings in the face of new facts or new
considerations. Moreover, respondent argues that petitioner cannot show that the circuit court
abused its discretion in declining to extend the time for service after the lengthy delay without
good cause.

        This Court has previously held that “‘[a]ppellate review of a circuit court’s order granting
a motion to dismiss a complaint is de novo.’ Syl. pt. 2, State ex rel. McGraw v. Scott Runyan
Pontiac–Buick, 194 W.Va. 770, 461 S.E.2d 516 (1995).” Syl. Pt. 1, Posey v. City of Buckhannon,
228 W.Va. 612, 723 S.E.2d 842 (2012). Our review of the record reflects no clear error by the
circuit court. The circuit court has the authority to reconsider its ruling in this matter based on
new information. Further, the decision to grant the requested extension is discretionary and this
Court finds no abuse of discretion herein.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: March 29, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum

NOT PARTICIPATING:

Justice Allen H. Loughry II




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