James M. Casey
Point Pleasant, West Virginia
Attorney for the Appellants

John E. Triplett, Jr.
Theisen, Brock, Frye, Erb & Leeper
Marietta, Ohio
Attorney for the Appellee

This Opinion was delivered PER CURIAM.

JUDGE RECHT sitting by temporary assignment.

        "Dismissal under Rule 4(l) of the West Virginia Rules of Civil Procedure is mandatory in a case in which good cause for the lack of service is not shown, and a plaintiff whose case is subject to dismissal for noncompliance with Rule 4(l) has two options to avoid the consequences of the dismissal: (1) To timely show good cause for not having effected service of the summons and complaint, or (2) to refile the action before any time defenses arise and timely effect service under the new complaint." Syl. pt. 3, State ex rel. Charleston Area Medical Center v. Kaufman, ___ W. Va. ___, 475 S.E.2d 374 (1996).

        The federal counterpart of Rule 4(l) is Rule 4(m) of the Federal Rules of Civil Procedure. According to the official commentary to Rule 4(m), "it was thought advisable to put some kind of stated cap on the time for serving the summons."
        Here, the appellants contend that they had good cause for not serving the summons and complaint within the 180-day period specified in Rule 4(l), and, therefore, the circuit court committed error in dismissing the complaint. Specifically, the appellants assert that they established good cause below for the delay of service by showing (1) that they had a change of counsel after the complaint was filed, (2) that they pursued settlement negotiations with the appellee's insurance carrier during the period of delaySee footnote 3 and (3) that the appellants hired an investigator who ultimately determined the appellee's whereabouts for service of process. Moreover, the appellants assert that the appellee was not prejudiced by the delay of service.
        The appellee, on the other hand, contends that the circuit court acted correctly in dismissing the complaint, inasmuch as the appellants failed to establish good cause to exempt them from the 180-day requirement and because prejudice to the appellee is not a proper consideration under Rule 4(l). In so contending, the appellee relies, primarily, upon the memorandum of opinion of the circuit court filed in support of the final order.
        In its memorandum, the circuit court stated that a plaintiff, in establishing good cause to excuse late service, must set forth specific facts to show why service was not completed within the time period designated by the Rule. First, the circuit court, in the memorandum, indicated that, here, good cause was not shown by the change of appellants' counsel, since each of the two attorneys employed by the appellants allowed separate periods of more than 180 days to elapse prior to the ultimate service of the appellee on April 28, 1994. Second, the circuit court indicated that good cause was not shown with regard to the settlement negotiations with the appellee's insurance carrier because such negotiations are not relevant to a plaintiff's obligation to complete service within the time period provided in Rule 4(l), and, in any event, the settlement negotiations in this action had effectively terminated in April 1993, long before the appellee was served. Third, the circuit court, in the memorandum, stated that, although the hiring of an investigator to locate the appellee may have been "the beginning of establishing good cause" for the delay of service, no explanation was offered as to why it took the investigator "from the fall of 1993 until early April 1994" to locate the appellee, especially in view of the absence of an allegation that the appellee had attempted to evade service of process in this action. Finally, the circuit court stated that the allegation of lack of prejudice to the appellee, in spite of the delay of service, was not a relevant consideration under Rule 4(l), especially where, as here, the appellants failed to act diligently.
        In response to the circuit court's reasoning, the appellants cite Gray v. Johnson, 165 W. Va. 156, 267 S.E.2d 615 (1980), a case involving dismissals under Rule 41(b) of the West Virginia Rules of Civil Procedure for failure to prosecute.See footnote 4 In Gray, a complaint for recovery for personal injuries was filed in the circuit court in June 1973, but service upon the nonresident defendant was not completed until August 1974. As the appellants herein emphasize, this Court stated, in Gray, that "a plaintiff must have an address for a nonresident motorist defendant; otherwise, [the] defendant is not available for service." 165 W. Va. at 161, 267 S.E.2d at 618. Nevertheless, also stating that a plaintiff must be diligent in attempting to serve the defendant, this Court remanded the action in Gray to the circuit court for a hearing to determine whether the plaintiff had been dilatory.
        In the action now before us, the complaint was dismissed pursuant to Rule 4(l). Rule 41(b) was not involved. However, under both rules, the 180-day period specified in Rule 4(l) and the admonition concerning Rule 41(b) expressed in Gray, a plaintiff must exercise some diligence in serving a nonresident defendant. As stated in Stevens v. Saunders, 159 W. Va. 179, 187, 220 S.E.2d 887, 892 (1975): "[I]t is a well established rule that the plaintiff or his attorney bears the responsibility to see that an action is properly instituted [.]"
        Recently, in State ex rel. Charleston Area Medical Center v. Kaufman, ___ W. Va. ___, 475 S.E.2d 374 (1996), this Court considered the dismissal of an action under Rule 4(l) for a 370-day delay in serving the defendant with process. Although the circuit court, in Charleston Area Medical Center, reinstated the action, this Court prohibited further proceedings therein, "unless the plaintiff . . . is properly found [by the circuit court] to have shown good cause under Rule 4(l) why the action should not be dismissed." ___ W. Va. at ___, 475 S.E.2d at 382. Recognizing, in Charleston Area Medical Center, that "by and large, courts have not considered that ongoing settlement negotiations excuse compliance with Rule 4(l) [and] that mere inadvertence, neglect, misunderstanding, or ignorance of the rule or its burden do not constitute good cause under Rule 4(l)," ___ W. Va. at ___, 475 S.E.2d at 380, 381, this Court held in syllabus point 3:
            Dismissal under Rule 4(l) of the West Virginia Rules of Civil Procedure is mandatory in a case in which good cause for the lack of service is not shown, and a plaintiff whose case is subject to dismissal for noncompliance with Rule 4(l) has two options to avoid the consequences of the dismissal: (1) To timely show good cause for not having effected service of the summons and complaint, or (2) to refile the action before any time defenses arise and timely effect service under the new complaint.

        Although this Court's decision in Charleston Area Medical Center was filed subsequent to the events of this action, that decision was, essentially, a confirmation of the clear import of Rule 4(l) that, in the absence of a good cause exception, an action shall be dismissed for failure to complete service within 180 days. Clearly, the analysis of the circuit court, in the memorandum of opinion, is consistent with the provisions of Rule 4(l) and our later ruling in Charleston Area Medical Center. Moreover, the facts set forth in the record support the circuit court's final order. In particular, the complaint filed by the appellants indicated that the appellee was a nonresident living in Woodsfield, Ohio, and, as the circuit court found, there was no allegation that the appellee attempted to avoid service of process. In addition, a letter dated April 23, 1993, from the appellants' original counsel to State Farm during settlement negotiations acknowledged that the appellee had not been served with process. The delay following that letter continued well into 1994. The service of process upon the appellee on April 28, 1994, took place some 490 days after the filing of the complaint.
        In syllabus point 2 of State ex rel. McGraw v. Scott Runyan Pontiac-Buick, 194 W. Va. 770, 461 S.E.2d 516 (1995), this Court held: "Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." See also syl. pt. 2, Randolph County Board of Education v. Adams, 196 W. Va. 9, 467 S.E.2d 150 (1995). However, in view of the several factual determinations made by the circuit court in the circumstances of this action, we also note this Court's observation in Phillips v. Fox, 193 W. Va. 657, 661, 458 S.E.2d 327, 331 (1995), that our review of a circuit court's factual findings is ordinarily under a "clearly erroneous" standard. See also Magaha v. Magaha, 196 W. Va. 187, ___, 469 S.E.2d 123, 126 (1996).
        Unlike the circumstances in Charleston Area Medical Center, which required a subsequent evidentiary hearing concerning the issue of good cause, further proceedings in this action to determine the existence of good cause under Rule 4(l) are unnecessary. Here, the facts concerning the delay in service of process were thoroughly expiscated or "fished out" by the circuit court. Maxey v. Maxey, 195 W. Va. 158, 159, 464 S.E.2d 800, 801 (1995). The circuit court's memorandum of opinion is well-reasoned. Accordingly, upon all of the above, the final order of the Circuit Court of Wood County, entered on March 10, 1995, is affirmed.

            Every nonresident, for the privilege of operating a motor vehicle on a public street, road or highway of this state, either personally or through an agent, appoints the secretary of state, or his or her successor in office, to be his or her agent or attorney-in-fact upon whom may be served all lawful process in any action or proceeding against him or her in any court of record in this state arising out of any accident or collision occurring in the State of West Virginia in which such nonresident may be involved[.]

        Nevertheless, the appellants never attempted to secure service of process through State Farm, and, as the appellee points out, "there was no evidence that even a courtesy copy of the Complaint was served on the [appellee's] insurance carrier."

        The current version of the above provisions of Rule 41(b) refers to actions "wherein for more than one year there has been no order or proceeding," rather than two years.