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Opposing a motion to dismiss under Rule 4(m) in United States District Court

Opposing a motion to dismiss for a failure to timely serve a defendant under Rule 4(m) of the Federal Rules of Civil Procedure is the topic of this blog post.   The author of this blog post mainly works on cases from California, however the issues discussed herein are applicable to any civil case in a United States District Court that is within the jurisdiction of the Ninth Circuit Court of Appeals.

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.”

Any plaintiff facing a motion to dismiss under Rule 4(m) needs to emphasize the diligent efforts they have made serve any defendant or defendants in order to defeat any motions to dismiss under Rule 4(m) because of failure to effect service in a timely manner.  If timely service has not been made they 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.

 

Attorneys or parties that would like more information on a Federal litigation document package containing 42 sample documents including a sample opposition to a motion to dismiss for a failure to timely serve a defendant under Rule 4(m) can use the link shown below.

Federal litigation document package

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 Federal legal newsletter by visiting the following link: http://www.legaldocspro.net/newsletter.htm

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.

<strong>DISCLAIMER:</strong>

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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2 Responses

  1. Hey Stan – I’m a NY paralegal and I really like your blog. I’m helping a friend w/ a pro se EDNY case and I was worried about serving the amended complaint to all the defendants (one of whom is a serial process and bills evader). This is really helpful. Keep up the good work.

    Like

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