Opinion
CIVIL ACTION NO. 5:10-CV-196 (MTT).
March 3, 2011
ORDER
The Plaintiff filed her Complaint (Doc. 1) on May 17, 2010. The Plaintiff, under Federal Rule of Civil Procedure 4(m), must serve the Defendant with both a summons and the Complaint within 120 days from the date of filing of the Complaint. As of September 14, 2010, which was 120 days from the date the Plaintiff filed her Complaint, there was no evidence in the record of service on the Defendant. Also, there is no evidence in the record of the issuance of a summons. On October 7, 2010, the Court ordered (Doc. 2) the Plaintiff to advise the Court of its efforts to serve the Defendant, and to show cause why her case should not be dismissed pursuant to Rule 4(m) for failure to serve the Defendant. In her Response (Doc. 3) to the Court's order, the Plaintiff stated that she mailed a copy of the Complaint to the Defendant and requested that the Court order the Plaintiff to properly serve the Defendant within a time specified by the Court.
The Plaintiff's Response, like her Complaint, is difficult to understand, often times bordering on incomprehensible.
If the Plaintiff fails to serve the defendant within 120 days, "the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Fed.R.Civ.P. 4(m). Good cause exists "only when some outside factor[,] such as reliance on faulty advice, rather than inadvertence or negligence, prevented service." Lepone-Dempsey v. Carroll County Com'rs, 476 F.3d 1277, 1281 (11th Cir. 2007) (internal quotation marks and citation omitted). However, even in the absence of good cause, "a district court has the discretion to extend the time for service of process" if, for example, the statute of limitations would bar the refiled action. Id. (internal citation omitted).
Here, the Plaintiff has failed to demonstrate good cause for her failure to serve the Defendant. Furthermore, having reviewed the Plaintiff's Complaint, the Court is of the opinion that, under the facts of this case, a permissive extension of time to effect service on the Defendant is not warranted. Accordingly, the Plaintiff's Complaint is DISMISSED without prejudice. SO ORDERED, this 3rd day of March, 2011.