Rule 4(m) states
in pertinent part that, “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.”
A plaintiff facing a motion to dismiss under Rule 4(m) should
emphasize the diligent efforts they have made to serve any defendant or
defendants to defeat any motion to dismiss under Rule 4(m) because of failure
to effect service in a timely manner. If
timely service has not been made a plaintiff should make a showing to the Court
of good cause for the failure to timely serve a defendant.
The Ninth Circuit Court of Appeals has characterized good
cause, at a minimum, as "excusable neglect." Electrical Specialty Co. v. Road Ranch Supply, Inc., 967 F.2d 309,
312 (9th Cir.1992)
And the United States Supreme Court has stated that district
courts have broad discretion to extend time for service under Rule 4(m). In Henderson v. United States, 517 U.S.
654, 661 (1996), the Supreme Court stated that Rule 4's 120-day time period for
service "operates not as an outer limit subject to reduction, but as an
irreducible allowance."
The Ninth Circuit
has also stated in a case from 2007 that courts making extension
decisions under Rule 4(m) may take the following factors into account: the statute
of limitations bar, prejudice to the defendant, a defendant having actual
notice of the lawsuit or evading service, a defendant concealing a defect in
attempted service, and length of delay before eventual service.
And the Ninth Circuit has also stated in two different cases
that a district court may extend the time for service retroactively even after
the 120-day service period has expired.
Attorneys or parties in civil
litigation in United States District Court who wish to view a sample opposition
to a motion to dismiss for a failure to timely serve a defendant under Rule
4(m) of the Federal Rules of Civil Procedure sold by the author can see below.
The author of this blog post,
Stan Burman, is a freelance paralegal who has worked in California and Federal
litigation since 1995.
If you enjoy this blog post,
tell others about it. They can subscribe to the author's weekly California and
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To view all of the sample legal
documents for use in California and Federal Courts sold by the author of this
blog post visit http://www.scribd.com/legaldocspro/documents
Copyright 2013 Stan Burman. All
rights reserved.
DISCLAIMER:
Please note that the author of
this blog post, Stan Burman is NOT an attorney and as such is unable to provide
any specific legal advice. The author is NOT engaged in providing any legal,
financial, or other professional services, and any information contained in
this blog post is NOT intended to constitute legal advice.
The materials and information
contained in this blog post have been prepared by Stan Burman for informational
purposes only and are not legal advice. Transmission of the information
contained in this blog post is not intended to create, and receipt does not
constitute, any business relationship between the author and any readers.
Readers should not act upon this information without seeking professional
counsel.
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