As amended in 2015, Federal Rule of Civil Procedure 4(m) doesn’t require dismissal of a complaint served late, even with good cause not shown. Here, extending the service deadline better served the interests of justice, since it wouldn’t prejudice the defendant and dismissal would have time-barred the plaintiff’s Title VII claim.
Plaintiff Claude Broome filed his complaint for race discrimination on September 25, 2017. But he neither timely served Defendant Iron Tiger Logistics Inc. nor asked for extended time to serve. On April 27, 2018, the court ordered Broome to give reason for his failure to serve Iron Tiger within 14 days of the order. Broome did not comply with the order. Instead, he served Iron Tiger on May 7, 2018 – 227 days after filing the complaint.
Iron Tiger has moved the court to quash service and dismiss the complaint.
No specified time
The order of April 2018 cannot be construed as an “order that service be made within a specified time” under Federal Rule of Civil Procedure 4(m). Rather, the order required Broome to provide the court some explanation as to why he failed to timely serve Iron Tiger. The court still has no justification for why Broome served Iron Tiger 227 days after filing his complaint.
Dismissal not warranted
Even absent good cause shown, Rule 4(m) now gives courts discretion to extend the service deadline, based on certain factors.
First, the fact that a statute of limitations will have run if not tolled favors extension. Here, the statute of limitations will prevent Broome from refiling his Title VII claim, so a dismissal without prejudice would effectively dismiss that claim with prejudice.
Second, Iron Tiger would not be prejudiced by extending Broome’s time for service. Although service was not timely, Iron Tiger was eventually served and knows of the claims Broome is bringing against it.
Dismissal with prejudice is the most severe sanction possible. Here, it was Broome’s attorney, not Broome himself, who failed to serve Iron Tiger; this failure was inadvertent, not intentional; and Iron Tiger has not noted any prejudice.
Federal courts are meant to resolve cases on the merits. In the interests of justice and judicial efficiency, the court will grant Broome an extension of time to serve Iron Tiger. Thus, dismissal is not warranted.
Defendant’s motion to dismiss/quash denied.
Broome v. Iron Tiger Logistics Inc., Case No. 7:17cv444, Aug. 20, 2018. WDVA at Roanoke (Urbanski). VLW No. 018-3-347, 9 pp.