E-Alert Case Updates
District Court Denied Plaintiff’s Motion for Extension of Time for Service Under the Mendez Standard While Awaiting Further Guidance from the Supreme Court
Malibu Media, LLC v. John Doe, Subscriber Assigned IP Address 184.108.40.206
In Malibu Media, LLC v. John Doe, the United States District Court for the District of Maryland denied Plaintiff’s Third Motion for Extension to Serve Summons and Complaint for failure to show good cause. Plaintiff, Malibu Media, LLC (“Malibu”), filed a complaint alleging copyright infringement, but, at the time of filing, Plaintiff could only identify the Defendant by the Internet Protocol (“IP”) address of his computer.
On the same day, Malibu filed a Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference in order to serve the Internet Service Provider (“ISP”), Comcast Cable (“Comcast”). The purpose of the subpoena was to compel the ISP to divulge the identity of the Defendant. While the court granted the motion, Comcast refused to disclose the Defendant’s identity until resolution of pending motions to quash subpoenas that Malibu had requested in other unrelated cases.
In the interim, Plaintiff filed a Motion for Extension of Time to Effect Service that the court granted on August 12, 2014, which pushed back the deadline for service to September 23, 2014.
Not until September 19, 2014, however, did the court resolve and deny the Motions to Quash in the pending cases, on which Comcast was waiting.
Plaintiff filed its Second Motion for Extension of Time to Effect Service, requesting a forty-five (45) day extension. As a basis for its second motion, Plaintiff stated that it was unable to comply with the deadline because it did not yet know the Defendant’s identity.
Plaintiff filed its Third Motion for Extension as to Service on November 7, 2014 requesting a thirty (30) day extension, or until December 7, 2014. Here, Plaintiff justified the extension request by shifting the blame to Comcast for not responding with the Defendant’s identity until October 14, 2014. Further, Plaintiff explained it was currently in the process of reviewing the information provided by Comcast and upon completion of same, it planned to file an Amended Complaint.
The court began its analysis by considering both the Federal and Local Rules governing Motions for Leave to Serve Summons and Complaint. It noted that Federal Rule of Civil Procedure 4(m) requires a plaintiff to serve a defendant “within 120 days after the complaint is filed,” although the court may extend the time for service if the plaintiff shows good cause. Similarly, Local Rule 103.8 allows the court to enter an order asking the party to show cause to avoid dismissal, and to dismiss a claim without prejudice where the plaintiff fails to show cause within the time set by the court.
The court devoted the balance of its analysis to expounding how Circuits have wrestled with application of 4(m) in the context of a party’s failure to show good cause. It noted that the Fourth Circuit interpreted 4(m) to require a court to dismiss a complaint that is not served within one hundred and twenty (120) days after it is filed unless good cause is shown. Mendez v. Elliott, 45 F.3d 75 (4th Cir. 1995).
This interpretation, however, creates some tension when considered in conjunction with the Advisory Committee’s Notes to Rule 4(m) which state that the rule “authorized the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown.” Hammad v. Tate Access Floors, Inc., 31 F. Supp. 2d 524 (D. Md. 1999).
To reconcile the two interpretations of 4(m), the court turned to the Supreme Court’s recent holdings. In dicta, the Supreme Court observed that “courts have been afforded discretion to enlarge the 120-day period even if there is no good cause shown.” Henderson v. United States, 517 U.S. 654, 658 (1996).
In Maryland, however, it remains unclear whether Rule 4(m) confers discretion to courts to grant extensions in the absence of good cause. See, e.g., Lehner v. CVS Pharmacy, RWT—08—1170, 2010 WL 610755, at *2 (D. Md. Feb. 17, 2010); Knott v. Atlantic Bingo Supply, Inc., JFM—05—1747, 2005 WL 3593743, at *1 n.1 (D. Md. Dec. 22, 2005); Melton v. Tyco Valves & Controls, Inc., 211 F.R.D. 288, 289 (D. Md. 2002); Hammad, 31 F. Supp. 2d at 526; United States v. Britt, 170 F.R.D. 8, 9 (D. Md. 1996).
Courts are divided, with some deferring to Mendez as binding Circuit precedent that prohibits courts from granting extensions absent good cause; while others consider Mendez to be outdated non-binding precedent. The court noted various cases where the Fourth Circuit held that courts did not have discretion under Mendez to extend the 4(m) one hundred and twenty (120) day deadline absent a showing of good cause. See Chen v. Mayor & City Council of Baltimore, 546 F. App’x 187, 188 (4th Cir. Nov. 12, 2013). While the court noted that the Supreme Court granted certiorari in Chen to address whether 4(m) grants district courts discretion to extend the time for service of process absent a showing of good cause, the decision is still pending.1 As such, this court held that the interpretation of 4(m) as set forth in Mendez was binding, or, in other words, that Rule 4(m)’s deadline could not be extended absent a showing of good cause.
Under this interpretation of the rule, the court found that the Plaintiff failed to warrant an extension. It explicated that “good cause” required a showing that the Plaintiff made “reasonable and diligent efforts to effect service prior to the 120-day limit . . . .” Quann v. White-Edgewater, 112 F.R.D. 649, 659 (D. Md. 1986). Here, Malibu only indicated that it had information to identify the Defendant, but failed to effect service because it was reviewing the information provided to it by Comcast. Without further explanation from the Plaintiff, the court did not find a reason to justify a continued delay.
In the midst of awaiting the Supreme Court’s decision in Chen, the court applied the interpretation of Rule 4(m) under Mendez. Ultimately, the court held that Malibu failed to even attempt to show good cause to justify extending the 4(m) deadline thirty (30) days, and as such, the court dismissed the Motion without prejudice for failure to timely serve process.
1The Second, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits have held that Federal Rule of Civil Procedure 4(m) grants district courts the discretion to extend the time for service of process absent a showing of good cause whereas the Fourth Circuit has held that the district court lacks such discretion.
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