Opinion
CIVIL ACTION NO. 00-0239-P-C.
November 20, 2000.
REPORT AND RECOMMENDATION
This cause is before the Magistrate Judge pursuant to 28 U.S.C. § 636 (b)(1)(B) on the Court's initiative due to the failure of plaintiff, the Water and Sewer Board of Prichard, Alabama, to serve the defendants within 120 days of the filing of the complaint as is required by Rule 4(m), Federal Rules of Civil Procedure. Upon consideration of the pleadings contained in the record, it is determined that this action should be dismissed without prejudice due to plaintiffs failure to prosecute this action.
FINDINGS OF FACT
1. Plaintiff filed this action on March 17, 2000 (Doc. 1). At that time plaintiff was represented by Ronnie L. Williams, Esq.
2. Although the Clerk of Court issued summonses on March 20, 2000 (Doc. 2), neither defendant has been served in the 216 days since the complaint was filed.
3. Subsequent to a routine review of this action, the undersigned entered a show cause order on August 30, 2000 (Doc. 4) requiring plaintiff to show cause as to why the action should not be dismissed due to plaintiffs failure to comply with Local Rule 4.1(c) or to otherwise prosecute this action. A response was filed on September 12, 2000 by Williams, on behalf of his client, informing the Court of the reasons for the delay in prosecution (Doc. 5). He also informed the Court that he was withdrawing as counsel and was being replaced by R. Scott Hetrick, Esq. A second response was filed by Hetrick on September 12, 2000 (Doc. 7) which recited the problems Williams had discussed and, in addition, asked for 45 additional days in which to review the action and to make a decision on further prosecution. This motion was granted in part and denied in part on September 13, 2000 (Docs. 7-8) ("Unless the Court is notified that service has been completed or attempted no later than October 13, 2000, it will be the undersigned's recommendation that this action be dismissed.").
Although the Court reduced the time for making a decision regarding continued prosecution of this action by 15 days, no objection to that Order was lodged. No attempt was made to show that 45 days, as opposed to 30 days, were needed.
4. To date, nothing has been filed by the plaintiff to indicate that service has been completed or attempted. No request has been made for a second extension of time in order to obtain service on the defendants.
CONCLUSIONS OF LAW
1. Rule 4(m) of the Federal Rules of Civil Procedure states: "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." In this case, the complaint was required to be served upon the defendants, Commercial Union Insurance Companies and Northern Assurance Company of America within 120 days of March 17, 2000. Therefore, plaintiff had until July 17, 2000 to serve the complaint upon the defendants. To date, plaintiff has not served either defendant with a copy of the complaint, although the Court granted an additional 30 days from September 12, 2000 in which to effect service or provide the Court with an explanation as to why service had not been accomplished within that extended period.
"The imposition of a time limitation on service of process was apparently a result of the shift of responsibility for effecting service from the United States Marshals to plaintiffs." Quann v. Whitegate-Edgewater, 112 F.R.D. 649, 658 n. 15 (D.Md. 1986).
2. After expiration of the 120-day time limit, as here, Rule 4 (m) affords the plaintiff two safety hatches to escape dismissal of the complaint and those are through a showing of "good cause" or by convincing the court that it should exercise its discretion and extend the time for service even absent a showing of good cause. Adams v. AlliedSignal General Aviation Avionics, 74 F.3d 882, 887 (8th Cir. 1996); MCI Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1098 (3rd Cir. 1995); Petrucelli v. Bohringer Ratzinger, 46 F.3d 1298, 1305 (3rd Cir. 1995); Madison v. BP Oil Company, 928 F. Supp. 1132, 1136-37 (S.D. Ala., 1996). Contra Zachery v. Thigpen, 895 F. Supp. 1472, 1474 (M.D.Ala. 1995) (a showing of good cause is the only safety hatch available to escape dismissal).
[T]he plain language of the rule itself explains that in all cases, the court has the option of dismissing the action or extending time for service. The fact that the word "shall" is used along with the disjunctive "or" in the first clause indicates that the court has discretion to choose one of these options. As an exception to this general provision, the second clause notes that if good cause exists, the district court has no choice but to extend time for service. Thus, the logical inference that can be drawn from these two clauses is that the district court may, in its discretion, extend time even absent a finding of good cause.Petrucelli, 46 F.3d at 1305; see also Adams, supra, 74 F.3d at 887; Fed.R.Civ.P. 4(m) advisory committee's note (1993) ("The new subdivision explicitly provides that the court shall allow additional time if there is good cause for the plaintiffs failure to effect service in the prescribed 120 days, and authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown").
3. After reviewing the responses to the show cause order of August 30, 2000, the service period was extended an additional 30 days. Plaintiffs options were to serve the defendants or to otherwise advise the Court of its attempts at service. The record does not disclose that either option has been exercised by the plaintiff. Without explanation, the additional period has expired without the plaintiff filing a notice of service or a description of what actions, if any, have been taken to perfect service.
4. Plaintiffs failure to serve the complaint under these circumstances makes it necessary for this Court to consider whether it should, in its discretion, dismiss the case without prejudice or extend the time for service. "The Advisory Committee note provides some guidance as to what factors the district court should consider when deciding to exercise its discretion to extend time for service in the absence of a finding of good cause." Petrucelli, 46 F.3d at 1305. The Committee explains, for instance, that relief may be justified "'if the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or conceals a defect in attempted service.'" Id. at 1305-1306, quoting Fed.R.Civ.P. 4(m) advisory committee's note (1993). However, "the running of the statute of limitations does not require the district court to extend time for service of process[,]" Id. at 1306, and does not establish good cause, as to read the rule and advisory note otherwise "would effectively eviscerate Rule 4(m) and defeat the purpose and bar of statutes of repose." Id., n. 7.
The Magistrate Judge is in agreement with the Third Circuit's stance that "a district court may not consider the fact that the statute of limitations has run until after it has conducted an examination of good cause." Petrucelli, 46 F.3d at 1306.
5. In a case such as this, where no information has been provided that would support a conclusion that good cause exists for the plaintiffs failure to serve the defendants, a second extension of the service period is unnecessary.
6. In consideration of the foregoing, therefore, it is the Magistrate Judge's recommendation that the Court dismiss plaintiffs action without prejudice rather than extending the time for service.
CONCLUSION
The Magistrate Judge recommends that this action be dismissed without prejudice sua sponte pursuant to Rule 4(m) and the plaintiffs failure to prosecute.
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.