When service is challenged, the plaintiff has the burden to demonstrate that a particular defendant was properly served, or show that there was good cause for any invalid service. See Fed.R.Civ.P. 4(c)(1); Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004) (citations omitted); Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir. 1985).
Rule 4(m)'s deadline for service is designed to force parties and their attorneys to be diligent in prosecuting their claims. Fimbres v. United States, 833 F.2d 138, 139 (9th Cir. 1987) (citing Wei v. Hawaii, 763 F.2d 370, 371 (9th Cir. 1985)).
As the Ninth Circuit explained, "[t]he rule is intended to force parties and their attorneys to be diligent in prosecuting their causes of action." Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985). Thus, Congress drafted the rule so that dismissal is mandatory if a defendant is not served within 120 days, unless the plaintiff can show good cause for the delay.
Inadvertence, ignorance, or oversight of counsel does not constitute excusable neglect. See Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir. 1985) (per curiam); see also Mumpower v. England, 292 Fed.Appx. 567, 568 (9th Cir. 2008) (citing Townsel v. Contra Costa Cty., 820 F.2d 319, 320 (9th Cir. 1987) (“The district court did not abuse its discretion . . . in dismissing [plaintiff's] action without prejudice because . . . his attorney's admitted failure to review the Federal Rules of Civil Procedure [did not] excuse[] his failure to effect timely service.”).
Furthermore, in construing and applying Rule 4(j), this court is aware that " ‘ [t]he rule is intended to force parties and their attorneys to be diligent in prosecuting their causes of action.’ " Geiger v. Allen, 850 F.2d 330, 331 (7th Cir.1988) (quoting Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir.1985) (per curiam)). Plaintiff does not take into account the ramifications engendered by the adoption of Rule 4(j) in 1983, as he cites numerous cases predating the Rule.
In either event, the burden is on the party on whose behalf service is required to show " good cause" why service was not effected within the prescribed 120-day period. Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir.1985); Coleman, 100 F.R.D. at 478; Davis-Wilson v. Hilton Hotels Corp., 106 F.R.D. 505, 507 (E.D.La.1985); Ruley v. Nelson, 106 F.R.D. 514, 517 (D.Nev.1985).
Congress intended Rule 4(j) to force parties to be diligent in prosecuting lawsuits. Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985); Wilson, 96 B.R. at 304. Concerned that placing the burden of service upon the plaintiff would lead to abuses, the courts have taken a very restrictive view towards Rule 4(j), insisting on literal adherence to the language of the rule.
The rule mandates dismissal unless the party responsible for the service can "show good cause" why service was not made as required. Norlock v. City of Garland, 768 F.2d 654, 657 (5th Cir. 1985); Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir. 1985). What constitutes "good cause" under this statute is not spelled out in the legislative history.
We review a district court's dismissal of a complaint under Fed.R.Civ.P. 4(j) for abuse of discretion. Wei v. State of Hawaii, 763 F.2d 370, 371 (9th Cir. 1985) (per curiam).
A district court's dismissal for failure to prosecute, where the plaintiff failed to serve timely the defendants under Rule 4(j), is likewise reviewed for abuse of discretion. Wei v. Hawaii, 763 F.2d 370, 371 (9th Cir. 1985); see also Link v. Wabash Railroad Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962). 2. Lack of Notice of Order to Show Cause