Opinion
CIVIL ACTION NO. 02-2590, SECTION "R" (1)
October 3, 2003
ORDER AND REASONS
Before the Court is defendants' motion to dismiss without prejudice for insufficiency of service of process or, in the alternative, for improper service of process. For the following reasons, the defendants' motion is GRANTED.
I. BACKGROUND
On August 22, 2002, Catherine Wade submitted her complaint to this Court in forma pauperis. After paying the requisite fee, the clerk's office filed her complaint on November 14, 2002. On December 10, 2002, the Court ordered Wade to effect service on defendants within 120 days of the date she filed her complaint or to show good cause in writing why service had not been made. The 120-day deadline for perfecting service of process passed on March 14, 2003. On June 4, 2003, Wade retained counsel who then filed a motion to enroll. Defendant New Orleans Passport Agency received a summons and a copy of the complaint via certified mail on June 20, 2003.
Defendant asserts that Wade has not shown good cause for failing to comply with the 120-day period for service of process under Federal Rule of Civil Procedure 4(m). In the alternative, defendant claims that Wade failed to properly effect service on the New Orleans Passport Agency. Wade claims that her counsel's kidney transplant in 2002 constitutes "good cause" for failing to comply with Rule 4(m).
II. DISCUSSION
Rule 4(m) establishes the time limit for service of process.
It provides:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
FED. R. Civ. P. 4(m); see Murungi v. Simmons, 2001 WL 1414963, at *1 (E.D. La. Nov. 9, 2003). If plaintiff does not make proper service within" a 120-day period, the district court may either "dismiss the action without prejudice . . . or direct that service be effected within a specified time." FED. R. Civ. P. 4(m). The second part of the rule restricts the district court's ability to dismiss the case, making an extension of time mandatory when plaintiff shows good cause. Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996). When service of process is challenged, the plaintiff carries the burden of proving good cause for the failure to effect timely service. See Glitz v. St. Tammany Parish Hospital, 125 F.R.D. 138 (E.D. La. 1998); Purvis v. Jenkins, 1998 WL 290212, at *2 (E. D. La. 1998).
The Federal Rules grant special considerations to a plaintiff who proceeds in forma pauperis. Pursuant to Rule 4(C)(2),
[a]t the request of the plaintiff . . . the court may direct that service be effected by a United States Marshal, or other person or officer specially appointed by the court for that purpose, Such an appointment must be made when plaintiff is authorized to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. . . .
Fed.R.Civ.P. 4(c)(2); see also 28 U.S.C. § 1915(c) (emphasis added). In interpreting this Rule, the Fifth Circuit has held that:
a plaintiff proceeding in forma pauperis is entitled to rely upon service by the U.S. Marshals and should not be penalized for failure of the Marshal's Service to properly effect service of process, where such failure is through no fault of the litigant . . . [but] at a minimum, a plaintiff should request service upon the appropriate defendant and attempt to remedy any apparent service defects of which a plaintiff has knowledge.Lindsay v. United States Railroad Retirement Board, 101 F.3d 444, 447 (5th Cir. 1996) (emphasis added); Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). A plaintiff proceeding in forma pauperis can therefore rely upon service by the U.S. Marshal provided the plaintiff requests such service and attempts to remedy any known service defects.
Although Wade submitted her complaint in forma pauperis, she did not request the U.S. Marshal to serve process, nor did she make a good faith effort to effectuate service. The Court recognizes that Wade's counsel made service of process on June 20, 2003, but this attempt at service does not constitute a good faith effort. Counsel made it well after the 120-day deadline and demonstrated no reason as to why it had not been made earlier.
Neither has the plaintiff demonstrated good cause for not effecting timely service. Good cause has been defined as "at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice, and some showing of good faith on the party seeking an enlargement and some reasonable basis for non-compliance within the time specified is normally required." Purvis, 1998 WL 290212, at *2 (internal quotation omitted) (citing Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985)); Gitz, 125 F.R.D. at 139. In other words, plaintiff shows good cause for the delay when a good faith attempt is made to effectuate service but the service nonetheless fails to satisfy all the requirements set forth in Rule 4. See Chilean Nitrate Corp. v. M/V Hans Leonhardt, 810 F. Supp. 732, 735 (E.D. La. 1992). Finally, "each case must taken on its own particular facts to determine whether a good faith effort to effectuate service has been made." Id.
Here, Wade has not made a showing of good cause for her failure to properly serve the defendant. Wade argues that her retained counsel's kideny transplant in 2002 constitutes good cause. The Court is not persuaded. Wade did not retain her counsel until June 4, 2003 — three months after the 120-day deadline had passed. Accordingly, the Court finds that Wade has not demonstrated good cause.
Moreover, the Court finds plaintiff's attempt at service of process on the New Orleans Passport Agency to be insufficient. Pursuant to Rule 4(i)(2), an officer, agency or corporation of the United States is properly served:
by serving the United States in the manner prescribed by Rule 4(i)(1) and by also sending a copy of the summons and complaint by registered or certified mail to the . . . agency. . . .
Service upon the Secretary of State and the New Orleans Passport Office must therefore be accompanied by "service upon the United States pursuant to Rule (4)(i)(1)." This rule provides that service on the United States is met when "delivering a copy of the summons and of the complaint to the United States Attorney . . ." and "by also sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General." Here, Wade did not serve both the United States Attorney and the Attorney General. She merely served the New Orleans Passport Agency via certified mail. Accordingly, the Court finds this to be insufficient to properly effect service upon defendants.
III. CONCLUSION
For the following reasons, the Court GRANTS defendants' motion to dismiss without prejudice.