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Fourth Circuit Declined to Grant Second Extension to Serve Process, Finding That Plaintiff’s Attorney’s Failure to Register New Email Address Did Not Constitute “Excusable Neglect.”
Martinez v. United States
In Martinez v. United States, the United States Court of Appeals for the Fourth Circuit affirmed the dismissal of Plaintiff’s claim for untimely service of process pursuant to Federal Rule of Civil Procedure 4(m). Plaintiff, Silvia Martinez, failed to serve the Defendant, the United States and the United States Postal Service, within the requisite one hundred and twenty (120) day time period. Although the district court granted Plaintiff’s first request for an extension to serve process, it denied her second request due to Plaintiff’s failure to demonstrate good cause or excusable neglect and granted Defendant’s Motion to Dismiss. The Court of Appeals affirmed.
On January 23, 2013, Plaintiff filed a complaint against the United States pursuant to the Federal Tort Claims Act after being involved in an automobile collision with a United States Postal Service vehicle. The following day, the court issued summonses; however, Plaintiff, by and through her attorney, failed to serve a summons and complaint on the United States within the allotted one hundred and twenty (120) days. In response, the court requested a status report to which Plaintiff did not respond. The court then ordered Plaintiff to show cause why her complaint should not be dismissed for failure to serve process within the allotted time period.
Plaintiff responded by way of filing a memorandum in support of a request for an extension of time. Therein, Plaintiff explained she missed the filing deadline because her attorney had changed his primary e-mail address and had not yet registered the change in the court’s electronic case filing system (“ECF”). Due to the change in his e-mail address and his failure to register the change, he had not received notice that the summonses had been issued. Further, Plaintiff assured the court that the error had been rectified. On June 25, the district court granted Plaintiff’s motion and provided thirty (30) additional days to serve process. Plaintiff served the United States on August 15, twenty (20) days beyond the allotted time frame allowed by the extension and, thus, the United States moved to dismiss the claim. Although Plaintiff responded arguing that she needed additional time for service as the court continued to e-mail her attorney’s former e-mail address, the district court dismissed the claim.
The Court of Appeals began its analysis by revisiting the standards required to justify both failing to timely serve and requesting an extension to make service. In accordance with Federal Rule of Civil Procedure 4(m), the court noted that a plaintiff may avoid dismissal for failure to serve within one hundred and twenty (120) days if and only if he shows “good cause.” In the same way, the court parsed out the standard for requesting an extension to serve process pursuant to Federal Rule of Civil Procedure 6(b)(1)(B). It underscored that a plaintiff who fails to make service within the one hundred and twenty (120) day time period, may be eligible for an extension if he can demonstrate the he failed to act because of “excusable neglect.”
The court devoted its attention to “excusable neglect” requirement. While Plaintiff argued that her failure to timely serve constituted excusable neglect, the court disagreed. Plaintiff posited that her failure to timely serve within the thirty (30) days should be excused given that the court continued to send correspondence to her attorney’s former email. She contended that such a mistake resulted from an ECF error, over which she had no control. Although the court acknowledged that an ECF error may have occurred, it declined to accept that such an error justified another extension for service.
The court shed light on what conduct constituted “excusable neglect” sufficient to grant a party an extension and protect a claim from dismissal. It explained that any party who failed to act “with diligence” would be unable to establish that his conduct represented excusable neglect. Here, the court found that the Plaintiff’s attorney was precluded from an extension for exactly this reason. The court found that the attorney knew that ECF had been sending email correspondence and notices to his former email address before the district court granted the extension, yet he still failed to check the e-mail address. The court concluded that any reasonable attorney, upon realizing such a mix-up, would continue to monitor his former e-mail address or at least check the court’s docket to remain aware of court proceedings until the ECF error had been certifiably remedied. Plaintiff’s attorney did not comport with the behavior the court expected of a diligent attorney and as such, failed to demonstrate excusable neglect.
Given that the Plaintiff needed to establish both excusable neglect and good cause to avoid dismissal and the court found she failed to establish “excusable neglect,” the court did not reach the issue of “good cause.”
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