29 Jan Federal Wrongful Death Suit Service – a Lawyer’s Extension (FRCP 4)
In a §1983 civil rights suit for wrongful death, Avery T. “Sandy” Waterman, Jr., Esq. recently withstood challenge in federal court to the pro se complaint not having been served for 755 days after filing. In Webb v. Stevens, 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008), the clerk had granted multiple extensions of time under Fed R. Civ. P. 4(m) to effect service, including without any finding of good cause.
It is not necessary for a court to find “good cause” for a discretionary extension of time to be valid under Rule 4(m). In 1996 the United State Supreme Court pronounced: “Most recently, in 1993 amendments to the Rules, courts have been accorded discretion to enlarge the 120-day period ‘even if there is no good cause shown.’ See, Advisory Committee’s Notes on Fed. R. Civ. Proc. 4, 28 U.S.C. App.” Henderson v. United States, 517 U.S. 654, 662 (1996)(dicta)(emphasis added). Contrarily, in 1995, a Fourth Circuit panel erroneously had upheld the old “good cause” requirement, reciting incorrectly that “Rule 4(j) was edited without a change in substance and renumbered as Rule(m),” Mendez v. Elliot, 45 F.3d 75, 78 (4th Cir. 1995); falling out of step with every other circuit in the country. See, e.g., Horenkamp v. Van Winkle and Co., 402 F.3d 1129, 1132-1133 (11th Cir. 2005)(and cases cited therein).
Early on, most Fourth Circuit district courts blindly followed Mendez, either ignorant of Henderson or deferential to Mendez. But the current has shifted, swamping Mendez increasingly. Some courts expressly have rejected Mendez. See, e.g., Scruggs v. Spartanburg Reg. Med. Ctr., 1999 U.S. App. LEXIS 26227, *5-7 (4th Cir. 1999); Yongo v. Nationwide Affinity Ins. Co. of Am., 2008 U.S. Dist. LEXIS 14684, *25(E.D.N.C. Feb. 25, 2008); Cane Creek Cycling Components, Inc. v. Tien Hsin Indus. Co., Ltd., 2007 U.S. Dist. LEXIS 79957, *19 (W.D.N.C. Oct. 15, 2007); Bethae v. S.P. Richards Co., 2007 U.S. Dist. LEXIS 71170, *1-4 (D.S.C. Sep. 24, 2007) (plaintiff did not serve within 120 days, Magistrate recommended additional 90 days, and Judge granted additional 270 days as “reasonable”); Cochran v. Waldrop, 2007 U.S. Dist. LEXIS 13213, *3 (D.S.C. 2007); Bonds v. Electrolux Home Prods. Inc., 2006 U.S. Dist. LEXIS 88392, *10-12 (D.S.C. 2006); Bey v. Stamp, 2006 U.S Dist. LEXIS 70298, *4 (W.D.N.C. 2006), aff’d 2007 U.S. App. LEXIS 15186 (4th Cir. 2007); Lane v. Lucent Techs., Inc., 388 F.Supp.2d 590, 596-597 (M.D.N.C.2005); Melton v. Tyco Valves & Controls, Inc., 211 F.R.D. 288, 289-290 (D. Md. 2002);Tracy v. Angelone, 2002 U.S. Dist. LEXIS 16682 (W.D. Va. 2002); and Hammad v. Tate Access Floors, Inc., 31 F. Supp. 2d 524, 527-528 (D. Md. 1999). Others less confrontationally have rejected Mendez impliedly, expressly following Henderson and/or other courts without referring to Mendez. See, e.g., Giacomo-Tano v. Levine, 1999 U.S. App. LEXIS 26997, *4 (4th Cir. 1999); Shekhem v. Norfolk So. Corp., 2008 U.S. Dist. LEXIS 15819 *3-4 (W.D.Va. Feb. 28, 2008); Fabriko Acquisition Corp. v. Advisco Capital Corp., 2007 U.S. Dist. LEXIS 11882, *2 (W.D. Va. 2007); Atkins v. Winchester Homes, Inc., 2007 U.S. Dist. LEXIS 5791 (D. Md. 2007); Huber v. Maxim Healthcare Servs., 2006 U.S. Dist. LEXIS 8315, *1 (D. Md. 2006); Life Ins. Co. of N. Am. v. Batson, 2004 U.S. Dist. LEXIS 4305 *5 (D. Md. 2004); Coates v. Shalala, 914 F. Supp. 110, 112-113 (D. Md. 1996); and Fultz v. Rittlemeyer, 1995 U.S. Dist. LEXIS 5379, *4-6 (W.D. Va. 1995). Given the “stealth” rejection, it is difficult to know just how many other Fourth Circuit district courts are not following Mendez.
The Eastern District of Virginia has eroded its support for Mendez. Compare Reliable Tax & Fin. Servs., Inc. v. H&R Block E. Tax Servs., Inc., 212 F.Supp.2d 592, 595 (E.D. Va. 2002)(Smith, J.)(following Mendez) with United States v. Gulf Ins. Co., 225 F.R.D. 526, 528 (E.D. Va. 2005)(Smith, J.)(“some question”) and United States v. Sea Bay Dev. Corp., 2007 U.S. Dist. LEXIS 33734, *19 (E.D. Va. 2007)(Jackson, J.)(“questionable nature of Mendez”). The District of Maryland repeatedly has rejectedMendez over time. Compare Braithwaite v. Johns Hopkins Hosp., 160 F.R.D. 75 (D. Md. 1995) with Atkins, Huber, Batson, Melton, Hammad and Coates.
“Circumstances in which the advisory committee suggests that the Court should exercise its discretion include pro se claims and cases in which ‘the application of statute of limitation would bar the refiled actions.’ Fed. R. Civ. P. 4(m) advisory committee’s note (1993).” Coates, 914 F.Supp. at 113 (emphasis added). Hence a number of courts have applied Rule 4(m) in those circumstances extending the time for service without requiring “good cause”. “In certain cases, extension of time for service is warranted because the Plaintiff’s claims would otherwise automatically be barred by application of the statute of limitations.*** The absence of a limitations issue does not, of course, preclude the extension given the other considerations discussed.” Yongo,* 29 (emphasis added). See also, e.g., id., Lane, Tracy and Fultz. Indeed, in Tracy, the Western District of Virginia vacated a prior dismissal order, reinstated the case on the docket and then extended the time for service with no “due diligence” or other “good cause”.