Summary
reasoning that the plaintiff's status as a pro se litigant leans in favor of leniency in granting a permissive extension of time for serving the defendant
Summary of this case from Quarles v. WilliamsOpinion
Case No. 03-2396-JWL
March 2, 2004
MEMORANDUM AND ORDER
The summons and complaint were filed in this case on August 5, 2003. On January 5, 2004, the court issued to plaintiff a notice and order to show cause (Doc. 2) why defendant was not served with the summons and complaint within 120 days from the filing of the complaint, and further why the court should not dismiss this case in its entirety without prejudice for lack of prosecution under Fed.R.Civ.P. 4(m). This case comes before the court on plaintiff's response (Doc. 4) to the court's notice and order to show cause and defendant's related motion to dismiss (Doc. 6). For the reasons explained below, the court will deem plaintiff's January 6, 2004, service on defendant to be timely and the court will deny defendant's motion to dismiss. Rule 4(m) provides in relevant part that
[i]f 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.
The plaintiff is entitled to a mandatory extension of time if the plaintiff demonstrates good cause for failing to timely effect service. Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995). If, however, the plaintiff fails to show good cause, the court may exercise its discretion and either dismiss the case without prejudice or extend the time for service. Id.; see also Fed.R.Civ.P. 4(m) advisory committee notes to the 1993 amendments ("The new subdivision . . . authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown.").
Rule 4(m) does not define good cause. The Tenth Circuit "has interpreted the phrase narrowly, rejecting inadvertence or neglect as 'good cause' for untimely service." In re Kirkland, 86 F.3d 172, 174 (10th Cir. 1996). In this case, the court concludes that plaintiff has not demonstrated good cause for failing to effect timely service. In plaintiff's response to the court's notice and order to show cause, he explains that he intended to obtain service by mail, but that the forms for service by mail contained errors; that he obtained temporary employment during the Christmas season and his employer caused him to work long hours, which rendered him unable to meet with anyone to obtain information regarding obtaining service because his hours went past working hours; and that he requested service by the United States Marshal's Service on January 6, 2004, shortly after plaintiffs temporary employment terminated and before he received notice of the court's order. Although plaintiff's explanation is understandable, it nevertheless ultimately demonstrates simple neglect. Thus, plaintiff has not demonstrated the degree of diligence necessary to rise to the level of being considered good cause for not obtaining service during an approximately five-month period beginning August 5, 2003, and ending January 6, 2004.
Pursuant to Espinoza, the court will then consider whether a permissive extension of time is warranted. Defendant argues plaintiff filed his complaint with just three days to spare before the limitations period ran on his claim. This consideration counsels against dismissal. See, e.g., Espinoza, 52 F.3d at 842 (noting the court should consider "whether the applicable statute of limitations would bar the refiled action"; quoting Fed.R.Civ.P. 4(m) advisory committee notes to the 1993 amendments); accord Booker v. Merck Human Health, Inc., No. 99-2069-JWL, 2000 WL 382000, at *3 (D. Kan. Jan. 19, 2000) (declining to dismiss a case on this basis). Further, the record reflects that plaintiff obtained service on defendant by way of the United States Marshal's Service on January 6, 2004, which was only thirty-four days after expiration of the 120-day service deadline and was notably before the date plaintiff received the court's notice and order to show cause. Further, although the court is mindful that plaintiff's status as a pro se litigant does not call for a more lenient standard in evaluating whether he demonstrated good cause warranting a mandatory extension of time, see, e.g., DiCesare v. Stuart, 12 F.3d 973, 980 (10th Cir. 1993) (observing that pro se litigants are not relieved of their responsibility to follow service requirements; interpreting Rule 4(j), which was the precursor to Rule 4(m), and which did not allow for a discretionary permissive extension of time), the court is nevertheless of the opinion that his status as a pro se litigant suggests that he should be granted a bit of leniency on this matter. Thus, the court will exercise its discretion and retroactively extend the deadline for plaintiff to serve defendant with the summons and complaint to January 6, 2004. Accordingly, the court deems plaintiff's service on defendant to be timely, and the court will decline to dismiss this case on the basis of untimely service.
The record reflects plaintiff received the court's notice and order to show cause on January 7, 2004 (Doc. 3).
IT IS THEREFORE ORDERED BY THE COURT that plaintiff's January 6, 2004, service on defendant is hereby deemed timely. Defendant's motion to dismiss (Doc. 6) is denied.