Judge Becker agreed that default judgment was unavailable, that Bohringer was entitled to summary judgment, and that the discovery ruling should stand. He disagreed, however, with the majority's conclusion that Petrucelli lacked good cause for untimely service, and would have remanded with instructions to grant a 120-day extension.
In his view, good cause under the former rule closely tracked excusable neglect: good faith plus a reasonable basis for failing to comply. Petrucelli acted in good faith and had reasonable grounds for his mistake because Jake Diel had changed its name to Excel, making it difficult to locate, and Oklahoma officials had represented that the company could be served through the Secretary of State.
Judge Becker regarded the case as closer to Consolidated Freightways, where a good-faith and nonstrategic human error constituted excusable neglect, than to precedents involving an attorney's unsupported reliance on a hired process server. Counsel's error was avoidable, but the name change and governmental misinformation made it sufficiently understandable to warrant relief.
He also stressed that the Oklahoma Secretary of State accepted the service papers and that Petrucelli reasonably believed service had occurred. He rejected the majority's treatment of reliance on a government official as equivalent to reliance on a privately hired process server.
Finally, Judge Becker noted that Jake Diel had actual notice through Bohringer's third-party claim and identified no meaningful prejudice from delayed service. In his view, a rigid good-cause ruling unfairly denied an injured plaintiff an opportunity to pursue a claim against a defendant that knew of the suit.