Shavey v. Burlington Northern Santafe Railway

Full title: DONALD SHAVEY, Plaintiff, v. THE BURLINGTON NORTHERN AND SANTAFE RAILWAY…

Court: United States District Court, D. Kansas

Date published: Mar 24, 2004

CIVIL ACTION No. 03-2241-CM (D. Kan. Mar. 24, 2004)

Opinion

CIVIL ACTION No. 03-2241-CM

March 24, 2004

MEMORANDUM AND ORDER

CARLOS MURGUIA, District Judge

Plaintiff filed the Complaint in this case on May 20, 2003. On October 28, 2003, Magistrate Judge Waxse ordered plaintiff to show good cause why service of the summons and complaint was not made upon defendant within 120 days from the filing of the complaint. Plaintiff failed to respond to the show cause order.

In Espinoza v. United States, 52 F.3d 838 (10th Cir. 1995), the Tenth Circuit set out the inquiry a district court should make before dismissing a claim pursuant to Federal Rule of Civil Procedure 4(m) for failure to serve process:

The preliminary inquiry under Rule 4(m) is whether the plaintiff has shown good cause for the failure to timely effect service. In this regard, district courts should continue to follow the cases in this circuit that have guided that inquiry. If good cause is shown, the plaintiff is entitled to a mandatory extension of time. If the plaintiff fails to show good cause, the district court must still consider whether a permissive extension of time may be warranted. At that point the district court may in its discretion either dismiss the case without prejudice or extend the time for service.

Espinoza, 52 F.3d at 841. In this case, the court concludes that plaintiff failed to respond to the show cause order and thus has failed to show good cause. The court therefore determines that plaintiff is not entitled to a mandatory extension of time.

Pursuant to Espinoza, the court next considers whether a permissive extension of time is warranted. The court finds that, in these circumstances, an extension of time in which to serve defendant is appropriate. The court prefers to decide cases on their merits rather than on technicalities. Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982). Accordingly, the court exercises its discretion and hereby grants an extension of time for plaintiff to effect proper service.

IT IS THEREFORE ORDERED that plaintiff must, on or before February 4, 2004, effect proper service of process on defendant. If plaintiff fails to effect proper service on defendant by February 4, 2004, this court will dismiss plaintiff's complaint without prejudice.

The clerk of this court is directed to forward a copy of this order, by certified mail, return receipt requested, to counsel for plaintiff.