Opinion
Civil Action NO. 99-2677 Section "C" (2).
April 13, 2000.
April 14, 2000.
Plaintiff Donna Laird moves the Court for an additional extension of thirty (60) days to file a service return on Defendants I.Q. Data Systems, LLC ("I.Q."). Defendants Colvin Hayes and Associates ("Colvin Hayes") and Scottsdale Insurance Company ("Scottsdale") opposes the motion, claiming that they should not be precluded any longer from taking depositions and otherwise proceeding in this case.
The Court previously granted Laird's motion for an extension of sixty (60) days to effect service on three of the Defendants. See Rec. Doc. 23 Service has been affected and return of service has been filed for two of those Defendants. However, from the representations in Laird's memorandum in support of the current motion, there have been genuine problems with the California process server hired to serve I.Q.
As the Court previously explained, Federal Rule of Civil Procedure 4(m) provides that a claimant serve a summons and complaint upon adverse parties within one hundred twenty (120) days of filing a complaint. The Rule, however, provides that a court may extend that period upon motion or its own initiative or upon showing of good cause for delay of service. See Fed.R.Civ.P. 4(m).
Construing the Rule, the Fifth Circuit set forth the following analysis for district courts to apply when considering a motion to extend time for service:
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.Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996) (citing Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1305-06 (3d Cir. 1995)).
To establish good cause, "a litigant must [1] demonstrate 'at least as much as would be required to show excusable neglect, as to which simple advertence or mistake of counsel or ignorance of the rules usually does not suffice' . . . [and] [2] make a showing of good faith and establish 'some reasonable basis of noncompliance within the time specified.'" Systems Signs Supplies v. United States Dept. of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990).
In the case at bar, the Court finds that Laird has demonstrated good cause for her failure to serve these I.Q. within the additional sixty (60) days previously granted. Therefore, the Court must extend the time for return of service for an additional (30) days. Laird, however, is reminded to keep abreast of development's with her California process server. If it appears that that process server is too unreliable, the Court to hire another process server and affect service as soon as possible. The Court further counsels Laird to affect service within this additional thirty (30) days rather than return with another request for additional time.
Therefore, IT IS ORDERED that Plaintiff's Motion for Extension of Time to Effect Service is hereby GRANTED. Accordingly, IT IS ORDERED that Plaintiff be permitted an additional thirty (30) days within which to serve process on Defendant I.Q. Data Systems.