Opinion
Civil Action No. 03-5299.
July 8, 2004
MEMORANDUM/ORDER
On September 19, 2003, plaintiff, Mark Jackson ("Jackson"), filed his original complaint in this court against 19 named defendants and 25 John Does. Jackson's allegations stem from a Pennsylvania state court case in which the defendants allegedly altered or fabricated documents and allegedly offered false testimony relating to those documents.
While 16 of the named defendants were served with the original complaint within the 120-day time frame set forth in Fed.R.Civ.P. 4(m), the 25 John Does were never served and three of the named defendants were served late — (albeit, not very late: the 120 days expired on January 19, 2004; Michael McLaughlin ("McLaughlin") was served on January 20, David Gartenberg ("Gartenberg") on January 21, and June McCrory ("McCrory") on January 25). On January 16, 2004, three days before Rule 4(m)'s 120-day mark, Jackson filed a motion to show good cause and for an extension of time to serve the John Does and the additional three defendants (docket # 15). A response was filed by all 19 defendants on January 30, 2004, opposing Jackson's motion. Also filed on January 30 was McLaughlin, Gartenberg and McCrory's Motion to Dismiss the complaint against them (docket #20), pursuant to Fed.R.Civ.P. 12(b)(5), which states that a claim may be dismissed for "insufficiency of service of process." These two motions will be addressed below.
Discussion
Federal Rule of Civil Procedure 4(m) states:
Time Limit for Service. 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.
Determining whether to extend the time to serve process involves a two-step inquiry. Boley v. Kaymark, 123 F.3d 756, 758 (3d Cir. 1997). First, the district court must determine if good cause exists for plaintiff's failure to effect timely service, and, if it does, an extension of time should be granted. Id. If good cause does not exist, the district court then considers whether to grant a discretionary extension of time. Id. Good Cause:
Good cause requires "at least as much as would be required to show excusable neglect." Dominic v. Hess Oil V.I. Corp., 841 F.2d 513, 517 (3d Cir. 1988). "Excusable neglect 'seems to require a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules.'" Id. (quoting Wright Miller, Federal Practice and Procedure, § 1165 (1987)). In determining whether good cause exists, courts consider (1) the reasonableness of plaintiff's efforts to serve; (2) prejudice that may befall a defendant as a consequence of untimely service; and (3) whether plaintiff moved for an enlargement of time. MCI Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995). The primary focus, however, is "on the plaintiff's reasons for not complying with the time limit in the first place." Id.
Jackson has failed to demonstrate "good cause" for his failure to serve the three defendants in a timely manner. Jackson admits that he did not attempt to serve any of the defendants until December, 2003 — three months after filing the original complaint and just a month before the January 19 deadline. This delay in initiating the service process, which Jackson does not attempt to explain, is not a reasonable basis to justify noncompliance with the time specified in the rules.
Discretionary Extension of Time:
Jackson maintains, however, that if he is not permitted to extend the time to serve McLaughlin, Gartenberg and McCrory, he will be prejudiced because "the statute of limitations would bar refiling the action against [the three defendants]." Defendants concede this point, and, in fact, contend that "many of plaintiff's claims were already time barred when he filed his complaint in September."
The Advisory Committee notes to Fed.R.Civ.P. 4(m) explain that discretionary relief may be justified when "the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or conceals a defect in attempted service." Courts also consider whether the defendant will suffer any prejudice as a result of extending the time for service. See Boley, 123 F.3d at 759.
In light of the fact that many of Jackson's claims will be time-barred if he were to refile the action against McLaughlin, Gartenberg and McCrory, and in light of the fact that these three defendants have not argued that they would be prejudiced if Jackson is permitted to proceed with the present action against them, I conclude that Jackson's time for serving McLaughlin, Gartenberg and McCrory should be extended.
Thus, based on the foregoing, it is hereby ORDERED that Jackson's Motion to Show Good Cause and for an Extension of Time to serve McLaughlin, Gartenberg and McCrory (docket #15) is DENIED as to good cause but GRANTED as to extending the time for serving the three defendants.
Furthermore, because Jackson's time to effect service has been extended, and because he ultimately served all three defendants within one week of Rule 4(m)'s 120-days, McLaughlin, Gartenberg and McCrory's Motion to Dismiss (docket #20) pursuant to Fed.R.Civ.P. 12(b)(5) is DENIED.
Defendants also argue that the complaint should be dismissed as to the 25 John Does because any attempt hereafter by Jackson to substitute a real defendant for a Doe defendant would raise issues under Fed.R.Civ.P. 15(c)(3), which states:
An amendment of a pleading relates back to the date of the original pleading when . . . the amendment changes the party or the naming of the party against whom a claim is asserted . . . and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party."
It may well be that Rule 15(c)(3) will complicate matters for Jackson if, at a later date, he attempts to amend his complaint to name any of the John Doe defendants; but it seems the better part of prudence to reserve consideration of such issues until they actually arise, if they do, rather than resolve them abstractly, in advance of their acquiring real form.