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Thompson v. Brown

United States Court of Appeals, Fifth Circuit
Jul 25, 1996
91 F.3d 20 (5th Cir. 1996)

Summary

holding that district court was not required to extend the time period for service when plaintiff admitted that good cause did not exist and failed to ask the court for an extension

Summary of this case from Foster v. ResCare, Inc.

Opinion

No. 96-60020. Summary Calendar

July 25, 1996.

John S. Barron, Jackson, MS, E. Michael Marks, Jackson, MS, for plaintiff-appellant.

Pshon Barrett, U.S. Attorney's Office, Jackson, MS, Alan M. Hathorne, Office of Regional Counsel, Department of Veterans Affairs, Jackson, MS, for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before GARWOOD, SMITH, and BENAVIDES, Circuit Judges.


Robert E. Thompson filed suit against Jessie Brown, Secretary of Veterans Affairs, for alleged violations of title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1991. Thompson failed to deliver a copy of the summons and complaint to the attorney for the Southern District of Mississippi and the Attorney General of the United States, as required by Fed.R.Civ.P. 4(i). The District Court dismissed the suit, without prejudice, for failure to serve a defendant within 120 days. Fed.R.Civ.P. 4(m). We affirm.

I.

Thompson concedes that he did not have good cause for his failure to serve the United States Attorney and the Attorney General but argues that the district court should have exercised its discretion to grant him an extension of time for service. Thus, as a threshold matter, we must decide whether rule 4(m), unlike its predecessor Fed.R.Civ.P. 4(j), grants a district court discretion to permit an extension of time for service, absent a showing of good cause.

We agree with the majority of circuits that have found that the plain language of rule 4(m) broadens a district court's discretion by allowing it to extend the time for service even when a plaintiff fails to show good cause. See, e.g., Espinoza v. United States, 52 F.3d 838, 840 (10th Cir. 1995); Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1304 (3d Cir. 1995). Rule 4(m) states: Time Limit for Service. 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.

We necessarily reject the Fourth Circuit's approach, which treats rule 4(m) as identical to the former rule 4(j). See Mendez v. Elliot, 45 F.3d 75, 78 (4th Cir. 1995). The Mendez opinion provides no insight as to why the court disregarded the plain language of rule 4(m) and instead treats the rule as the mirror image of rule 4(j). See Mendez, 45 F.3d at 78 (concluding, without explanation, that rule 4(j) was edited without a change in substance and renumbered as rule 4(m)).

Under rule 4(m), when a plaintiff fails to serve a defendant within the 120-day period, the district court has two choices: It may either "dismiss the action without prejudice . . . or direct that service be effected within a specified time." Fed.R.Civ.P. 4(m) (emphasis added). The next portion of the rule qualifies the district court's choices, making an extension of time mandatory when the plaintiff shows good cause.

As a result of the rule change, when a district court entertains a motion to extend time for service, it must first determine whether good cause exists. If good cause is present, the district court must extend time for service. If good cause does not exist, the court may, in its discretion, decide whether to dismiss the case without prejudice or extend time for service. See generally Petrucelli, 46 F.3d at 1305-06 (discussing the procedure a district court must adopt under the amended rule).

II.

The entire basis of Thompson's appeal is that the district court failed even to consider whether it should exercise its discretion to grant an extension. From the court's failure to assert its discretionary powers, Thompson infers a conclusion by the district court that it did not have the power to grant an extension absent a showing of good cause. If the inference is true, the district court applied an incorrect legal standard and, as such, abused its discretion.

Our review of the record convinces us that Thompson is mistaken. The absence of a discussion of the district court's discretionary powers in the court's order does not demonstrate that the court misapplied rule 4(m). The court's failure to discuss its discretionary power is more properly attributed to the fact that Thompson did not raise the issue. Rather than concede lack of good cause and ask the court to grant an extension, Thompson argued that the defendant had waived the jurisdictional defect by filing an answer, participating in the case management conference, and joining in an agreed order of dismissal of improperly named defendants. Not once did Thompson assert that the court should excuse his neglect in failing to serve the defendants.

Absent any indication that Thompson raised the issue before the district court, his claim that the court applied the incorrect legal standard is insupportable. The court properly dismissed the claim once it had satisfied itself that good cause did not exist. Once Thompson admitted lack of good cause and failed to ask the court for an extension of time, the court was under no obligation to exercise its discretion.

Thompson's final allegation is that the district court relied on cases interpreting rule 4(j), proving that the court incorrectly believed that it did not have discretion to grant an extension of time. This argument has no merit. The cases cited by the court relate to Thompson's claim that the defendant waived its jurisdictional defenses. In rejecting that argument the court cited two of its previous opinions, Turner v. United States E.P.A., 848 F. Supp. 711 (S.D. Miss. 1994), and Classic Motel, Inc. v. Coral Group, 149 F.R.D. 528 (S.D. Miss. 1993), for the proposition that the defendant did not waive lack of subject matter jurisdiction by filing an answer and participating in case management. That general proposition of law was not affected by the amendments to rule 4, and the court's citation to them does not demonstrate any confusion.

AFFIRMED.


Summaries of

Thompson v. Brown

United States Court of Appeals, Fifth Circuit
Jul 25, 1996
91 F.3d 20 (5th Cir. 1996)

holding that district court was not required to extend the time period for service when plaintiff admitted that good cause did not exist and failed to ask the court for an extension

Summary of this case from Foster v. ResCare, Inc.

holding that district court was not required to extend the time period for service when plaintiff admitted that good cause did not exist and failed to ask the court for an extension

Summary of this case from John Doe v. St. James Parish Sch. Bd.

holding that district court was not required to extend the time period for service when plaintiff admitted that good cause did not exist and failed to ask the court for an extension

Summary of this case from Wesenberg v. New Orleans Airport Motel Assocs. TRS, LLC

holding that district court was not obligated to address its discretionary power to grant extension of time for service of process where plaintiff failed to argue that it should be granted an extension even absent a showing of good cause

Summary of this case from U.S. v. Rodrigue

holding that the plain language of the rule broadens a court's discretion to extend time for service, even if good cause has not been shown

Summary of this case from In re Deresinski

adopting this majority view

Summary of this case from Worrell v. Houston CAN! Academy

denying the plaintiff's appeal because he did not present his argument for a discretionary time extension to the district court

Summary of this case from Mann v. Castiel

affirming district court's dismissal without prejudice of civil rights action where plaintiff failed to comply with FED. R. CIV. P. 4 and FED. R. CIV. P. 4(m)

Summary of this case from Saucier v. United States

rejecting a claim that the district court erred in "fail[ing] even to consider whether it should exercise its discretion to grant an extension" because the plaintiff "failed to ask the court for an extension of time"

Summary of this case from Morrissey v. Wolf

discussing Rule 4(m) under an older version of Rule 4 which allowed dismissal after 120 days

Summary of this case from Schwarzer v. Hernandez

noting that court may also extend time for service even in the absence of good cause

Summary of this case from Holmes v. All Am. Check Cashing, Inc.

stating that the new version of Rule 4(m) "broadens the district court's discretion by allowing it to extend the time for service even when a plaintiff fails to show good cause"

Summary of this case from Lashone v. Mancuso

noting that where plaintiff has not demonstrated good cause, the court has the discretion to dismiss the case or to allow more time for service upon a showing that relief is justified

Summary of this case from T.R. Hoover Community Dev. Corp. v. City of Dallas

stating that the court has discretion to extend the time for service absent good cause

Summary of this case from U.S. ex Rel. Gudur v. Texas Department of Health
Case details for

Thompson v. Brown

Case Details

Full title:ROBERT E. THOMPSON, PLAINTIFF-APPELLANT, v. JESSIE BROWN, SECRETARY OF…

Court:United States Court of Appeals, Fifth Circuit

Date published: Jul 25, 1996

Citations

91 F.3d 20 (5th Cir. 1996)

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