"To demonstrate good cause, a plaintiff must at least show excusable neglect." Becker v. Wilkinson, 2006 U.S. Dist. LEXIS 95826, at *9 (S.D. Ohio Aug. 3, 2006). This standard is strict, and "met only in extraordinary cases."
Even without good cause, the district court can use its discretion to grant a plaintiff a specified amount of time to effect service. See Becker v. Wilkinson, 2006 U.S. Dist. LEXIS 95826, at *1 (S.D. OH. Aug. 3, 2006); Vitek v. AIG Life Brokerage, 2007 U.S. Dist. LEXIS 18814, at *15, (S.D. OH. Feb. 27, 2007). This discretion supports the "strong preference that claims be adjudicated on their merits."
(1) whether a significant extension of time [is] required; (2) whether an extension of time would prejudice the defendant other than the inherent 'prejudice' in having to defend the suit; (3) whether the defendant had actual notice of the lawsuit; (4) whether a dismissal without prejudice would substantially prejudice the plaintiff . . . and (5) whether the plaintiff had made any good faith efforts at effecting proper service of process.Becker v. Wilkinson, No. 2:05-CV-908, 2006 U.S. Dist. LEXIS 95826, at *10-*11 (S.D. Ohio Aug. 3, 2006) (quoting Stafford v. Franklin Cty., No. 2:04-cv-178, 2005 U.S. Dist. LEXIS 12740, *9-*10 (S.D. Ohio June 28, 2005); Nehls v. Hillsdale Coll., No. 1:03-CV-140, 2004 U.S. Dist. LEXIS 8588, at *15 (W.D. Mich. Feb. 20, 2004); Vergis v. Grand Victoria Casino & Resort, 199 F.R.D. 216, 218 (S.D. Ohio 2000); Wise v. Dep't of Defense, 196 F.R.D. 52, 54-57 (S.D. Ohio 1999)).
When a motion to dismiss for failure of service is filed prior to the expiration of the 120 day period, as Defendants' motion was in this case, courts will generally deny that motion as premature. See generally Fed. R. Civ. P. 12(b)(5); Becker v. Wilkinson, Case No. 2:05-cv-908, 2006 LEXIS 95826, at *3 (August 3, 2006); Sayyah v. Brown County Bd. Of Comm'rs, Case No. 1:05-cv-16, 2005 LEXIS 15226, at *5 (S.D. Ohio, April 29, 2005); see also Candido v. District of Columbia, 242 F.R.D. 151, 161 (D.C. 2007)(holding that defense is not available prior to expiration of 120 day period).
"To demonstrate good cause, a plaintiff must show at least excusable neglect." Becker v. Wilkinson, 2006 U.S. Dist. LEXIS 95826 *9 (S.D. Ohio Aug. 3, 2006). However, the Sixth Circuit has held that "Rule 4(m) gives the district court discretion to grant an extension of time to serve the summons and complaint even in the absence of a showing of good cause."