In a §1983 civil rights wrongful death suit, Avery T. “Sandy” Waterman, Jr., Esq. recently survived a federal court challenge to 755 days elapsing from filing to service of the pro se complaint. One unsuccessful defense line of attack was that the clerk’s multiple extensions were not granted within the original time periods for service. Webb v. Stevens, No. 5:05-CV-33-BO(1) Decision and Order (Mar. 17, 2008) aff’d Order (May 22, 2008),2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008).
Fed. R. Civ. P. Rule 4(m) is not subject to Fed. R. Civ. P. 6(b). Specifically, Rule 6(b) does not superimpose onto Rule 4(m) the ostensible requirement of moving for an extension prior to expiration of the 120-day time period. That would be contrary the plain clear language of Rule 4(m) and Rule 6(b)(2). It also ignores that the Court can act “on its own initiative” under Rule 4(m).
Rule 4(m), which pertains solely to service, provides in pertinent part: “If service is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative [shall ‘dismiss’ or ‘extend’].” Thus, Rule 4(m) explicitly: (1) is wholly self-enabling, does not reference Rule 6(b) and is not dependent upon it; (2) is triggered if and when the time already has expired without service, i.e., must not be invoked prior to expiration of the time; and (3) always is subject to the Court acting sua sponte. Per 1993 Amendment, a Rule 4(m) extension may be for “good cause” or no good cause.
Conversely, Rule 6(b) provides for general enlargement of time since, unlike Rule 4(m), most Rules with time periods do not contain their own provisions for enlargement. Rule 6(b) allows enlargement: (1) within court discretion prior to expiration of the time period; and, significantly, (2) for “excusable neglect” even after expiration of the time period.
Hence specific Rule 4(m) and general Rule 6(b) both provide for enlargement, yet have difference structure, timing and standards. Although Rule 6(b) may apply generally to service under Rule 4 – just as it does to other Rules – it does not rewrite (eviscerate) Rule 4(m), which since its 1993 Amendment is a much more liberal standard for enlargement of time for service.
