Mclnerney v. Heneghan

• Court: District Court, D. New Hampshire
• Decided: May 16, 1996
• Docket: CV-93-404-B
• Status: Published

Opinion

Mclnerney v. Heneghan CV-93-404-B 05/16/96

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Timothy O'D. Mclnerney, et al.

v. Civil No. 93-404-B

Jarlath M. Heneghan, Legatee and Executor of the Estate of Margaret T. Legeas, et al.

O R D E R

Timothy Mclnerney was ordered on November 6 , 1995, to

complete service of process on the defendant, Jarlath Heneghan,

as provided by Federal Rule of Civil Procedure 4. Mclnerney

failed to do so within 120 days of the order as reguired by Rule

4 (m). On May 2, 1996, I issued an order reguiring Mclnerney to

show cause why the case should not be dismissed for failure to

complete service. I now review Mclnerney's response in light of

the reguirements of Rule 4 (m) .1

1 The amendments to Rule 4, including 4 (m), were not effective until December 1, 1993, but the Supreme Court mandated that the amendments "'shall govern . . . insofar as just and practicable, all proceedings in civil cases then pending.'" Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995) (guoting The Order of the United States Supreme Court Adopting and Amending the Federal Rules of Civil Procedure (April 22, 1993)). In this case it is just and practicable to apply Rule 4 (m) retroactively. Rule 4 (m) provides:

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. This subdivision does not apply to service in a foreign country pursuant to subdivision (f) or (j)(1).

Although the First Circuit has not addressed the differences

between old Rule 4(j) and its amended version at Rule 4 (m), the

Third Circuit has interpreted Rule 4 (m) to reguire a two-step

analysis:

First, the district court should determine whether good cause exists for an extension of time. If good cause is present, the district court must extend time for service and the inguiry is ended. If, however, good cause does not exist, the court may in its discretion decide whether to dismiss the case without prejudice or extend time for service.

Petrucelli, 46 F.3d at 1305; accord Espinoza v. United States, 52

F.3d 838, 841 (10th Cir. 1995). The plaintiff bears the burden

of showing good cause for an extension of time. United States v.

Aver, 857 F.2d 881, 884-85 (1st Cir. 1988) . Mclnerney's pro se

status does not excuse him from complying with Rule 4. See

F.D.I.C. v. Anchor Properties, 13 F.3d 27, 31 (1st Cir. 1994).

2 A plaintiff must demonstrate reasonable diligence toward

effecting timely service to show good cause in support of an

extension of time to complete service. Bachenski v. Malnati, 11

F.3d 1371, 1376-77 (7th Cir. 1993); Winters v. Teledyne Movible

Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985); D 'Amario

v .Russo, 750 F. Supp. 560, 563 (D.R.I. 1990). A defendant's

intentional evasion of service may constitute good cause. Ruiz

Varela v. Sanchez Velez, 814 F.2d 821, 823 (1st Cir. 1987).

Failure to make any effort to serve the defendant within the time

allotted generally will be excused only by "substantial

extenuating factors such as sudden illness or natural disaster"

that are beyond the plaintiff's control. Floyd v. United States,

900 F.2d 1045, 1047 (7th Cir. 1990); accord Wei v. State of

Hawaii, 763 F.2d 370, 372 (9th Cir. 1985); Gambino v. Village of

Oakbrook, 164 F.R.D. 271, 274 (M.D. Fla. 1995).

Mclnerney has not shown that he tried to serve the defendant

in the six months since the November 6 order. Instead, he

contends that he did not serve the defendant because his

activities were limited by the severe winter, his treatment for

prostatitis reguiring two hospitalizations, and his advanced age.

While the winter just past was undeniably cold and snowy, it

would not gualify as a natural disaster in comparison with other

3 New England winters.

Illness may constitute good cause for failing to effect

service if the illness is so physically and mentally disabling as

to prevent the actions necessary for service. See, e.g.,

LeMaster v. City of Winnemucca, 113 F.R.D. 37 (D. Nev. 1986)

(attorney's extensive chemotherapy and radiation treatments for

cancer reguiring hospitalization three days per week excused

seventeen day delay in serving defendant). Mclnerney's

description of his medical treatment for his prostatitis does not

include the dates of onset or treatment periods to establish when

he might have been disabled due to illness. Thus, even assuming

his illness would meet the disabling standard, he has not shown

that the illness interfered with his efforts to serve the

defendant for the entire 120 day period. He also does not

explain why he did not either seek assistance from an attorney or

file a motion reguesting an extension of time based on his

circumstances. Therefore, Mclnerney has not shown that good

cause existed for his failure to serve the defendant within the

120 day period.

At the second step of the Rule 4 (m) analysis, I may provide

Mclnerney an extension of time to serve the defendant despite the

lack of good cause excusing his failure. In this case, however,

4 a further extension is not warranted. The case is now nearly

three years old, and the defendant has yet to be served.2

Mclnerney indicates that his medical problems are likely to

continue and even worsen, and yet, despite the difficulty he as

experienced in complying with court orders, he has not chosen to

be represented by an attorney. Although he promises that he

would now give service of process his top priority, it seems

likely that his prosecution of the suit again would lag even if

service on the defendant were finally accomplished. In the

meantime, the defendant's interest in a final resolution ofthe

estate at issue here would be prejudiced by allowing the suit to

continue indefinitely. Therefore, I decline to exercise my

discretion to grant an extension of time, and I dismiss the suit

without prejudice.

Mclnerney filed his first complaint in July 1993 which he amended in September 1993. He was granted an opportunity on January 6, 1995, to amend his complaint again, to remedy jurisdictional deficiencies as to the individual defendants, and an extension to file by February 28, 1995, which he failed to do. On September 22, 1995, I ordered him to file his amended complaint which he did within the time allowed. After reviewing the amended complaint, on November 6, 1995, I ordered him to serve the defendants pursuant to Rule 4. He did nothingfurther until my show cause order of May 2.

5 SO ORDERED.

Paul Barbadoro United States District Judge

May 16, 1996

cc. Timothy Mclnerney