Opinion
No. 01 CV. 8475 (ILG)
December 17, 2002
MEMORANDUM ORDER
SUMMARY
Defendant/Third-party plaintiffs Rheem Textile Systems, Inc. and Hoffman/New York, Inc. move by order to show cause for an extension of their time to serve third-party defendant Young Suk Bae ("Ms. Bae") under Rule 4(m). The motion is unopposed, probably for the same reason that the extension is sought — Ms. Bae is and has been in Korea. Movants have been able to find a local address and telephone number for Ms. Bae, and have spoken to a co-resident there about Ms. Bae's whereabouts. According to this person, Ms. Bae will be back from Korea by the end of December. Movants served this order to show cause at that local address.
DISCUSSION
Under Fed.R.Civ.P. 4(m). the court must grant an extension of the time to serve if the serving party shows "good cause" for its failure to make timely service. American International Telephone, Inc. v. Mony Travel Servs., 203 F.R.D. 95, 97 (S.D.N.Y. 2001); Blessinger v. United States, 174 F.R.D. 29, 31 (E.D.N.Y. 1997). In determining whether good cause exists, the court considers 1) the reasonableness and diligence of the serving party's efforts to make service, and 2) the prejudice to defendant from the delay. Coleman v. Cranberry Baye Rental Agency, 202 F.R.D. 106, 109 (N.D.N.Y. 2001); Bloomer v. New York, 1994 U.S. Dist. LEXIS 2939, 1994 WL 92388 (E.D.N.Y. Mar.3d 1994). The court may, in its discretion, grant the extension where good cause is not shown. American, 203 F.R.D. at 97; Blessinger, 174 F.R.D. at 30-31.
Here, defendant/third-party plaintiffs made diligent efforts to serve Ms. Bae, but were unable to make service because she was in Korea. This constitutes good cause for their failure to serve her. See Coleman, 202 F.R.D. at 109 (good cause found where plaintiff made diligent efforts but could not locate party to be served). Further, there is no prejudice to Ms. Bae, as against whom the statute of limitations expires on September 25, 2005.
Korea is not a signatory to the Hauge Convention on Service Abroad. To attempt to make service by other means would likely take more time and considerably more effort than simply waiting for her return.
CONCLUSION
For the above reasons, the request for an extension of time in which to serve Ms. Bae until February 17, 2003, is granted. Counsel shall send a copy of this order to her local address.