Opinion
Case No. 2:01-CV-912TC
April 10, 2003
ORDER
On November 27, 2001, Plaintiff Kevin Lee Kerkhoff filed the Complaint in this case, alleging violations of 42 U.S.C. § 1983 and 1985. On February 19, 2003, the court issued an Order (the "Order") that, among other actions, denied Mr. Kerkhoffs motion for summary judgment and motion for default judgment, granted the Third District Court's motion to dismiss, and granted West Valley City's motion for summary judgment. The Order also directed Mr. Kerkhoff to show cause as to why the court should not dismiss the case without prejudice as against the remaining Defendants for failure to properly effect service pursuant to Federal Rule of Civil Procedure 4(m).
Federal Rule of Civil Procedure 4(m) provides in part,
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). The Tenth Circuit has adopted a two-step approach to dismissals pursuant to Rule 4(m). See Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995). First, courts should determine "whether the plaintiff has shown good cause for the failure to timely effect service." Id. If the plaintiff shows good cause, he or she "is entitled to a mandatory extension of time." Id. If the plaintiff does not show good cause, the court should consider whether a permissive extension of time is warranted. See id. "At that point the district court may in its discretion either dismiss the case without prejudice or extend the time for service." Id.
On February 26, 2003, Mr. Kerkhoff filed a response to the Order to show cause and two packets of summonses. The response explains some of the troubles Mr. Kerkhoff encountered in attempting to effect service. However, neither the response nor the summonses that Mr. Kerkhoff submitted demonstrate that Mr. Kerkhoff properly served the remaining Defendants, namely, Tri Transportation Corp., Dan Robinson, Rick Robinson, Elaine R. Larsen, and Foiloloo Leausa. Nothing in the record, for example, indicates that an authorized or appointed agent for Tri Transportation Corp. was served or waived service. See Fed.R.Civ.P. 4(h)(1); Utah R. Civ. P. 4(d)(1)(E).
Mr. Kerkhoff also has not shown that good cause exists for the failure to timely effect service. See Fed.R.Civ. p. 4(m); Lopez v. United States, 129 F. Supp.2d 1284, 1295 (D.N.M. 2000) (stating that "[i]nadvertence, negligence, ignorance of the service requirements, and reliance on a process server have all been determined not to constitute good cause"). Further, given (1) that Mr. Kerkhoff filed this action well over one year ago and (2) that Mr. Kerkhoff seeks to recover based on acts that occurred over ten years ago, the court will not grant Mr. Kerkhoff a permissive extension of time in which to effect service. Consequently, pursuant to Federal Rule of Civil Procedure 4(m), the court DISMISSES Mr. Kerkhoffs Complaint without prejudice as against the remaining Defendants for failure to properly effect service.