Opinion
CIVIL ACTION No. 00-2519-CM.
April 25, 2001
MEMORANDUM AND ORDER
Pending before the court is plaintiff's response to the court's order to show cause and her request to extend time in which to effect service (Doc. 7). Also pending is defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(5) (Doc. 5). For the reasons set forth below, plaintiff's request to extend time is granted and defendant's motion to dismiss is denied.
• Background
Plaintiff filed her complaint on November 13, 2000. Pursuant to Fed.R.Civ.P. 4(m), service upon defendant was required on or before March 13, 2001. On March 16, 2001, the court entered an order (Doc. 4) requiring plaintiff to show cause on or before April 4, 2001 why service of the summons and complaint was not made in this case upon defendant Ed Bozarth Chevrolet, Inc. within 120 days from the filing of the complaint, as required by Fed.R.Civ.P. 4(m). Plaintiff was ordered to show good cause in writing why the action should not be dismissed in its entirety without prejudice.
On April 4, plaintiff filed its response to the court's show cause order. Plaintiff contends that because she was unrepresented for a period of time during the 120 day period following the filing of her complaint and because her attorney was ill for the period of time preceding the end of the 120 days, good cause exists for the late service. Specifically, plaintiff represents that shortly after filing her complaint on November 13, 2000, she terminated her attorney Cortland E. Berry's representation of her due to a potential conflict. Her attorney then advised her that she needed to effect service for her complaint to remain viable. At no time did Mr. Berry seek to withdraw his representation of plaintiff, pursuant to D. Kan. Rule 83.5.5. On March 2, 2001, plaintiff again secured Mr. Berry's representation. Subsequently, Mr. Berry became seriously ill and was unable to effect service prior to the expiration of the 120 day time period on March 13, 2001. Mr. Berry represents that, as a solo practitioner, he did not have the resources to effect service while he was ill. Plaintiff obtained the summons on March 22, 2001 and represents that service was made on March 23, 2001 — ten days late.
• Discussion
Fed.R.Civ.P. 4(m) provides in relevant part:
If service of the summons and complaint is not made upon a defendant within 120 days after 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.
Here, Rule 4(m) required plaintiff to serve defendant on or before March 13, 2001 — 120 days following the filing of the complaint. Plaintiff did not obtain a summons for defendant until March 22, 2001 — 129 days after filing the complaint and did not serve plaintiff until March 23, 2001 — 130 days after filing the complaint (i.e., ten days late). Plaintiff asserts she had good cause for the delayed service and requests the court extend the time to effect service for 10 days.
Where a plaintiff has not timely effected service, a district court should take a two-step approach to determine whether to extend the time for service under Rule 4(m). See Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995). First, the court should inquire whether the plaintiff has established good cause for failing to effect timely service. If the plaintiff has established good cause, the court must grant a mandatory extension of time for service. Espinoza, 52 F.3d at 841. Second, if the plaintiff fails to show good cause, the court may, in its discretion, grant a permissive extension of time for service. Id.
Rule 4(m) does not define good cause. The Tenth Circuit, however, "has interpreted the phrase narrowly, rejecting inadvertence or neglect as 'good cause' for untimely service." In re Kirkland, 86 F.3d 172, 174 (10th Cir. 1996). "Mistake of counsel or ignorance of the rules also usually do not suffice" as good cause. Id. at 176. In addition, absence of prejudice to a defendant does not constitute good cause. Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436, 1439 (10th Cir. 1994).
The court notes that litigants are not relieved of their responsibility to follow the service requirements of Rule 4(m) where they proceed pro se. DiCesare v. Stuart, 12 F.3d 973, 980 (10th Cir. 1993) (interpreting former Fed.R.Civ.P. 4(j), the precursor to Rule 4(m)).
The court finds plaintiff has established good cause for the delay in service. The court is unpersuaded by plaintiff's argument that the period of time she was allegedly unrepresented ( i.e., from at or near November 13, 2000 to March 2, 2001) should not count against her in calculating the days allowed for service. This is true because, even proceeding pro se, plaintiff had an obligation to effect service. Id. However, the court finds significant plaintiff counsel's representation that he became too ill to effect service shortly after the time plaintiff sought to re-engage his services. Where plaintiff attempted to terminate Mr. Berry's representation at or near the time she filed her complaint and did not seek to re-engage his services until approximately 10 days before the end of the service period, and where Mr. Berry represents he was unable to complete service due to an illness within the final days for service, the court, in its discretion, finds good cause exists for the delayed service.
The court does not reach the issue of whether plaintiff was truly unrepresented during the period from at or near November 13, 2000 to March 2, 2001.
Based upon its finding regarding good cause, the court finds it unnecessary to address whether a permissive extension is appropriate here.
• Order IT IS THEREFORE ORDERED that plaintiff has established good cause for the delayed service upon defendant. Therefore, plaintiff's request for an extension of time to effect service (Doc. 7) is granted. Plaintiff shall have up to and including March 23, 2001 to effect service. Further, defendant's motion to dismiss (Doc. 5) is denied.
Dated this day of February 2002, at Kansas City, Kansas.