Opinion
Civil No. AMD 04-3886.
April 24, 2005
ORDER
Plaintiff Nutramax Laboratories, Inc., filed this patent infringement action on December 10, 2004, joining eight defendants involved in the dietary supplement industry. The clerk issued summons for the defendants on December 13, 2004. The case sat dormant thereafter. On April 5, 2005, as the 120-day deadline for service of process under Fed.R.Civ.P. 4(m) approached, the court issued a show cause order requiring plaintiff to explain its failure seasonably to serve process on defendants. Thereafter, in motions for renewal of summons (accompanied by several e-mails showing correspondence between plaintiff and several defendants), plaintiff sought an extension of time for service.
The record shows that, as of the issuance of the show cause order on April 5, 2005, there had been no attempt to serve any defendant. Moreover, the sole return of service in the record as of the date of this Order shows that service was not effected until April 7, 2005, two days after the issuance of the show cause order. Counsel for plaintiff seems to make a habit of filing actions and then withholding service of process. See Burns Russell Co. of Baltimore v. Oldcastle, Inc., 166 F.Supp.2d 432, 439 (D.Md. 2001) (noting that withholding service on defendants constituted "calculated idleness" that "should not be condoned by the court" under Rule 4(m)). Counsel has again engaged in this questionable practice.
Accordingly, the court reiterates its non-acceptance of this practice and finds no "good cause" (or, indeed, no good reason) to extend the time for service in this case. The motions to renew summons are DENIED.
Two of the defendants have apparently agreed with plaintiff that service should continue to be withheld and the vitality of the summons extended. But the consent of a defendant does not provide substantial justification for the kind of lackadaisical docket management the parties here seem to favor. Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir. 1985) ("[Rule 4(m) is intended to force parties and their attorneys to be diligent in prosecuting their causes of action."); Redding v. Essex Crane Rental Co., 752 F.2d 1077, 1079 (5th Cir. 1985) (per curiam) ("The district court acted properly to vindicate its control of its docket.").
SO ORDERED.