Fed.R.Civ.P. 4(m). Rule 4(m) "requires that a plaintiff serve a defendant with a copy of the summons and complaint within 120 days after filing the complaint." In re Langston, 319 B.R. 667, 670 (D. Utah 2005).
Webster Capital primarily relies upon Friedman & Feiger, LLP v. ULofts Lubbock, LLC,See, e.g., In re Langston, 319 B.R. 667, 670–71 (D.Utah 2005); Friedman & Feiger, L.L.P. v. ULofts Lubbock, LLC, 2009 WL 3378401, at *2 (N.D.Tex. Oct. 19, 2009). in support of its argument that settlement negotiations justified its untimely objection
However, "[t]he plaintiff who seeks to rely on [the] good cause provision must show meticulous effort to comply with the rule." In re Langston, 319 B.R. 667, 670 (D. Utah 2005) (citing Kirkland), 86 F.3d at 176).
“Although a statute of limitations problem may justify relief under Rule 4(m), that factor alone is not determinative and does not make dismissal inappropriate.” In re Langston, 319 B.R. 667, 670 (D. Utah 2005) (citing Advisory Committee Note to F.R.C.P. 4(m)). See also Cloyd v. Arthur Anderson & Co., Inc., 25 F.3d 1056, 1994 WL 242184, at *2 (10th Cir. 1993) (unpublished table opinion) (“That a plaintiff's claims will be time-barred if an action is dismissed for failure to effect service within 120days does not mandate an extension of time under new Rule 4(m).”); Valdez v. Chuwanti, 2022 WL 17093445, at *3 (D.N.M. Nov. 21, 2022) (“[T]he mere possibility of a statute of limitations bar does not establish good cause for failure to timely serve and does not preclude the Court from exercising its discretion to dismiss a case.”);
"Although a statute of limitations problem may justify relief under Rule 4(m), that factor alone is not determinative and does not make dismissal inappropriate." In re Langston, 319 B.R. 667, 670 (D. Utah 2005), citing Advisory Committee Note to F.R.C.P. 4(m). See also Cloyd v. Arthur Anderson & Co., Inc., 25 F.3d 1056, 1994 WL 242184, at *2 (10th Cir. 1993) (unpublished table opinion) ("That a plaintiff's claims will be time-barred if an action is dismissed for failure to effect service within 120 days does not mandate an extension of time under new Rule 4(m)."); Smyers v. County of Atchison, Kansas, 2008 WL 4822062, at *4-5 (D. Kan. Nov. 5, 2008)
SeeIn re Dyer, 330 B.R. 271, 276 (Bankr. M.D. Fla. 2005) ("The plaintiff who seeks to rely on good cause provision must show meticulous effort to comply with the rule.") (quoting In re Langston, 319 B.R. 667, 670 (D. Utah 2005) ). Accordingly, Plaintiffs have failed to show diligence that constitutes good cause and the Court declines to consent to modification of the Scheduling Order and denies Plaintiffs' Motion to Extend Deadlines.
On the other hand, discretionary extensions have been denied even though the statute of limitations would bar refiling after dismissal.Tony Divino Enterp. v. Langston (In re Langston), 319 B.R. 667, 670 (D. D. Utah 2005).See Id., Menges v. Menges (In re Menges), 337 B.R. 191, 194 (Bankr. N.D. Ill. 2006).
There are three exceptions to the 120 day service requirement of Rule 4(m): "(1) good cause under Rule 4(m); discretion under Rule 4(m); and (3) excusable neglect under Bankruptcy Rule 9006(b)." Tony Divino Enterprises v. Langston (In re Langston), 2005 WL 88911 at *2 (D. Utah Jan. 13, 2005). Because Plaintiff has not responded to Debtor's motion, the Court will direct Plaintiff to file, within twenty days of the entry date of this Order, appropriate pleadings to show good cause or some other basis why this Court should not dismiss this action for failure to properly perfect service of the summons and complaint upon Debtor or for want of prosecution.