The 1993 amendment of Fed.R.Civ.P. 4 not only altered the rule's language, but also moved and redesignated subsections within the rule. Barr v. Barr (In re Barr), 217 B.R. 626, 629 (Bankr.W.D.Wash. 1998).
The 1993 amendment of Fed.R.Civ.P. 4 not only altered the rule's language, but also moved and redesignated subsections within the rule. Barr v. Barr (In re Barr), 217 B.R. 626, 629 (Bankr.W.D.Wash. 1998). Prior to 1993, a finding of good cause was a requisite to a court's extending time of service.
Thompson v. Brown, 91 F.3d 20 (5th Cir. 1996); Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338 (7th Cir. 1996); Adams v. AlliedSignal Gen. Aviation Avionics, 74 F.3d 882 (8th Cir. 1996); Espinoza v. United States, 52 F.3d 838 (10th Cir. 1995); Petrucelli v. Bohringer Ratzinger, 46 F.3d 1298 (3rd Cir. 1995); Florida Outdoor Equipment, Inc. v. Deresinski (In re Deresinski), 214 B.R. 35 (Bankr.M.D.Fla. 1997); Barr v. Barr (In re Barr), 217 B.R. 626 (Bankr. W.D.Wash. 1998). The Supreme Court in Henderson discussed whether Rule 4 superseded the Suits in Admiralty Act provision requiring service on the United States to be made "forthwith".
Because the record discloses that the bankruptcy court was aware of its ability to grant an extension even in the absence of good cause, and given that court's wide latitude in deciding whether to grant such an extension, see In re Sheehan, 253 F.3d at 513 (citing Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 400 (1990)), the bankruptcy court did not abuse its discretion in failing to permissively extend the time to perfect service, under the circumstances it found to exist. While Premier correctly points out that "the running of the limitations statute alone could be reason to extend time for service," Casey, 223 B.R. at 884 (citing Petrucelli, 46 F.3d at 1306 n. 8) (emphasis added); see also In re Ferguson, 204 B.R. at 209 (citing FED. R. CIV. P. 4(m), advisory committee notes, 1993 Amendments); Barr v. Barr (In re Barr), 217 B.R. 626, 629 (Bankr.W.D.Wash. 1998)), the Casey court's decision that a bankruptcy court would not necessarily abuse its discretion by granting an extension based exclusively upon the running of the statute of limitations does not, of course, mean that a court would abuse its discretion should it decide not to extend time for service under such circumstances. The running of the statute of limitations does not require that a district court extend the time for service of process under [FED. R. CIV. P. 4(m)]. Petrucelli, 46 F.3d at 1306.
" The Ninth Circuit ... has not addressed what factors a court should consider when deciding to exercise its discretion to extend time for service in the absence of a finding of good cause." In re Barr, 217 B.R. 626, 630 (Bankr.W.D.Wash.1998).
However, it was not until the 1996 amendments to the Federal Rules of Bankruptcy Procedure, effective December 1, 1996, that this change was made applicable to adversary proceedings by Fed.R.Bank.P. 7004. See Broitman v. Kirkland ( In re Kirkland,) 181 B.R. 563, 566 (D.Utah 1995) (collecting cases) and Barr v. Barr ( In re Barr), 217 B.R. 626, (Bankr.W.D.Wash. 1998) (noting that Rule 4(m) was later incorporated into Rule 9004 effective December 1, 1996). All of the events at issue regarding service in this case occurred prior to December 1, 1996.
Rule 4(m), however, has been construed more liberally by bankruptcy courts, especially where, as in the present matter, the plaintiff would be time-barred from filing a new action notwithstanding that the rule compels that the dismissal be "without prejudice." See Henderson v. United States, 517 U.S. 654, 663, 116 S.Ct. 1638, 1643, 134 L.Ed.2d 880 (1996) ("[C]ourts have been awarded discretion to enlarge the 120-day period 'even if there is no good cause shown.'") (dictum) (quoting the Advisory Committee Notes to Rule 4(m)); Westfield Ins. Cos. v. Madar (In re Madar), 218 B.R. 382 (Bankr.E.D.Mich. 1998.); Barr v. Barr (In re Barr), 217 B.R. 626 (Bankr.W.D.Wash. 1998); Florida Outdoor Equip., Inc. v. Deresinski (In re Deresinski), 214 B.R. 35 (Bankr.M.D.Fla. 1997); Smith v. Hamrah (In re Hamrah), 174 B.R. 109 (Bankr.W.D.Mo. 1994). All of these cues deal with complaints seeking a determination of the dischargeability of certain debts under 11 U.S.C.A. ยง 523(c) (West 1993 Supp. 1999), which, pursuant to FED.R.BANKR.P. 4007(c) "shall be filed not later than 60 days following the first date set for the meeting of creditors."
We have not addressed what factors a court should consider when deciding to exercise its discretion under Rule 4(m). See Barr v. Barr (In re Barr), 217 B.R. 626, 630 (Bankr. W.D.Wash. 1998). We find it unnecessary, however, to articulate a specific test that a court must apply in exercising its discretion under Rule 4(m).
Considering the first factor, Plaintiff served Defendant SHP approximately three weeks later than required by statute, requiring only a minimal extension, and thus weighing in favor of Plaintiff. As to the second factor, "in this context, prejudice 'contemplates loss of evidence, unavailability or other material alteration caused by the delay that would prevent the [Plaintiff] from presenting his case.'" Id. at *16 (quoting Barr v. Barr, 217 B.R. 626 (Bkrtcy. W.D. Wash. 1998)). Defendant suffers little prejudice in defending this suit, due to its infancy, outside of the "inherent prejudice in having to defend."
We have not addressed what factors a court should consider when deciding to exercise its discretion under Rule 4(m). See Barr v. Barr (In re Barr), 217 B.R. 626, 630 (Bankr.W.D.Wash.1998).We find it unnecessary, however, to articulate a specific test that a court must apply in exercising its discretion under Rule 4(m).