Opinion
Case No. 2:01-CV-1042TC
April 10, 2003
ORDER
On December 27, 2001, Plaintiff Maurice Womble filed the Complaint in this case, alleging violations of 42 U.S.C. § 1983 and 1985. Mr. Womble filed an Amended Complaint on January 21, 2003. On March 18, 2003, the court issued an Order directing Maurice Womble to show cause as to why the court should not dismiss the case without prejudice for failure to
effect service pursuant to Federal Rule of Civil Procedure 4(m). Mr. Womble responded to the Order to show cause on March 26, 2003. As explained below, Mr. Womble has not adequately shown either that he has properly effected service or that he is entitled to an extension of time to effect service.
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.
Mr. Womble's March 26, 2003 response did not address Mr. Womble's attempts to effect service. Further, nothing in the record indicates that Mr. Womble has effected service on any of the Defendants.
Mr. Womble 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, Mr. Womble has not addressed why the court should grant him a permissive extension of time in which to effect service. Consequently, pursuant to Federal Rule of Civil Procedure 4(m), the court DISMISSES Mr. Womble's Complaint without prejudice for failure to effect service.
IT IS SO ORDERED.