Untimely service may be excused without ‘good cause’

Where a plaintiff failed to serve defendants within the 90-day period required by Fed. R. Civ. P. 4(m), the rule gives district courts discretion to grant an extension even without a showing of good cause.

Background

The plaintiffs served process on several of the defendants roughly a year after filing their complaint, in violation of Federal Rule of Civil Procedure 4(m)’s 90-day time requirement for service. The district court found insufficient the plaintiffs’ efforts to establish “good cause” for the delay, and because the court understood that a showing of good cause was a condition for any extension, it dismissed the plaintiffs’ claims against these defendants.

Analysis

In relevant part, Federal Rule of Civil Procedure 4(m) provides: If a defendant is not served within 90 days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.”

In this case, the district court, applying Fourth Circuit and district court precedents, read Rule 4(m) to require that a plaintiff show good cause to obtain an extension for serving a defendant. It noted that under those precedents, “courts do not have discretion to extend the Rule 4(m) deadline absent good cause.” After considering the Gelins’ explanation for delaying service of process for more than a year as to the health care providers, the court concluded that the explanation was insufficient to show good cause and dismissed their claims against those defendants.

The court sees no ground upon which to disturb the district court’s conclusion that the Gelins failed to establish “good cause” within the meaning of Rule 4(m). It accordingly affirms the district court’s holding that the Gelins did not demonstrate good cause for their failure to serve the five health care provider defendants within the 90-day service period provided by Rule 4(m).

The Gelins seek to marginalize the effect of the good-cause ruling by arguing that Rule 4(m) gives district courts discretion to grant an extension even without a showing of good cause. The court agrees.

In its first sentence, Rule 4(m) provides, “If a defendant is not served within 90 days after the complaint is filed, the court … must” do one of two things — “[1] dismiss the action without prejudice against that defendant or [2] order that service be made within a specified time.” Fed. R. Civ. P. 4(m). These two options are authorized in the disjunctive without reference to whether the plaintiff has demonstrated good cause for the failure to serve the defendant.

It thus follows from the text that, even without a showing of good cause, the district court may “order that service be made within a specified time” rather than dismissing the action and that the choice between the two is left to the district court’s discretion. Only in its second sentence does Rule 4(m) mention good cause, providing that “if the plaintiff shows good cause for the failure” to serve the defendant within 90 days, then “the court must extend the time for service for an appropriate period.” Thus, under Rule 4(m), while a district court must extend the time for service when a plaintiff shows good cause, such a showing is not necessary for the court to grant an extension in its discretion.

In requiring a showing of good cause as a condition for exercising discretion, the district court recognized that “[t]here is a split in authority regarding whether Rule 4(m) gives courts discretion to extend deadlines for service without a showing of good cause,” and it followed those decisions that had “concluded that courts do not have discretion to extend the Rule 4(m) deadline absent good cause.” The “split in authority” identified by

the district court has its roots in this court’s prior decision in Mendez v. Elliot, 45 F.3d 75 (4th Cir. 1995), and whether it remained good law after Henderson v. United States, 517 U.S. 654 (1996). Today the court brings its jurisprudence on this issue in line with Henderson and confirms that the statements in Mendez indicating that a plaintiff must establish good cause to obtain an extension of time to serve the defendant are no longer good law.

Affirmed in part and vacated in part.

Gelin v. Shuman, Case No. 21-1498, May 24, 2022. 4th Cir. (Niemeyer), from DMD at Baltimore (Russell). Lee B. Rauch for Appellants. Lauren Elizabeth Marini for Appellees. VLW 022-2-128. 14 pp.