PAUL W. GRIMM, District Judge.
This Memorandum Opinion addresses Defendants Montgomery County and Officer Kurt Colson's Motion to Dismiss for Insufficient Service, ECF No. 7, and Memorandum in Support, ECF No. 7-1; Plaintiff Ingham Defreitas's Opposition, ECF No. 10; and Defendants' Reply, ECF No. 11. A hearing is not necessary. See Loc. R. 105.6. For the reasons stated herein, Defendants' Motion is GRANTED.
Plaintiff brought suit in this Court, alleging that on September 28, 2009, Officer Colson, responding to a 911 call, ordered Plaintiff to "get out of the car asshole" and to take his hands out of his pockets, while "screaming and cursing at Mr. Defreitas." Compl. ¶¶ 5-11, ECF No. 1. When Officer Colson attempted to handcuff Plaintiff, Plaintiff "[f]ear[ed] for his safety because of Officer Colson's belligerence" and "turned and attempted to run." Id. ¶ 12. Officer Colson shot Plaintiff five times and charged him with disarming a police officer and second degree assault. Id. ¶¶ 13-14.
On June 23, 2010, Plaintiff was found not guilty of disarming a police officer and guilty of second degree assault. Id. ¶ 15. He appealed his conviction, which the Maryland Court of Special Appeals vacated. Id. ¶ 16. Plaintiff filed suit in this Court while his second trial was pending. Id. ¶ 17. Plaintiff claims that Officer Colson used excessive force in violation of 42 U.S.C. § 1983. Id. ¶¶ 18-25. Additionally, Plaintiff claims that Defendants are liable for false imprisonment, false arrest, battery, and violations of the Maryland Declaration of Rights. Id. ¶¶ 26-53.
On remand, Plaintiff was convicted again, Pl.'s Opp'n 2 & Ex. 1, ECF No. 10-1. Plaintiff's appeal of the second conviction was pending at the time Plaintiff filed his Opposition. Pl.'s Opp'n 2.
Plaintiff filed his Complaint on September 28, 2012, and had 120 days thereafter to effect service of process. Fed.R.Civ.P. 4(m); Loc. R. 103.8. On May 16, 2013, well over 120 days later, I issued a show cause order, noting that service of process had not been effected on Defendants and ordering Plaintiff to show cause within fourteen days why the case should not be dismissed with prejudice pursuant to Fed.R.Civ.P. 4(m) and Loc. R. 103.8. ECF No. 3. That same day, Plaintiff requested that the summons be reissued, ECF No. 4, and he served both Defendants on May 22, 2013, ECF No. 6-1.
In response to the Show Cause Order, Plaintiff explained that he filed the Complaint on September 28, 2012 because "the limitations period on the claims related to Officer Colson's use of force was about to expire, " but he "did not include a civil rights claim based on Plaintiff having been arrested without probable cause" for second degree assault because those charges "were still unresolved." Pl.'s Resp. to Show Cause Order ¶¶ 4-5, ECF No. 6. Plaintiff stated that he "had not served the Complaint in this matter because he had hoped that the second degree assault charges could be resolved, the Complaint amended, and all of Plaintiff's claims resolved in one case." Id . ¶ 8.
Defendants moved to dismiss, contending that "Plaintiff made no attempts to serve the Complaint on Defendants for over seven months, " and that Plaintiff "concedes that he made no diligent effort in pursuing his claim in this case for seven months, " such that "Plaintiff has not provided good cause for his failure" to effect service of process within 120 days, as Rule 4(m) requires. Defs.' Mot. ¶¶ 3-5. In his Opposition, Plaintiff provided the same rationale for withholding service of process that he provided in response to the Show Cause Order. See Pl.'s Opp'n 2. He argues that he does not need to show good cause to effect service of process more than 120 days after filing the Complaint. Id. at 2-3. Specifically, Plaintiff insists that the Fourth Circuit's holding in Mendez v. Elliott, 45 F.3d 75 (4th Cir. 1995), that "a court does not have discretion in allowing a time extension beyond the 120-day limit, absent a showing of good cause, " was based on an erroneous assumption, and that the more recent Supreme Court case of Henderson v. United States, 517 U.S. 654 (1996), which the Fourth Circuit has followed in unpublished opinions, permits a court to allow additional time without a showing of good cause. Pl.'s Opp'n 2-3. Plaintiff contends that I should "permit service outside of the 120-day period" because Plaintiff's delay was "an attempt to conserve the resources of the Court and the litigants" by waiting to have the opportunity to amend the Complaint before serving Defendants, and because dismissal "would effectively be with prejudice because the claims would be barred by the applicable statute of limitations." Id. at 4-5.
Defendants moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(5), Defs.' Mot. 1, which provides that a defendant may assert insufficient service of process by motion as a defense to a claim for relief. "If service is contested, the plaintiff bears the burden of establishing the validity... pursuant to Rule 4.'" Shlikas v. SLM Corp., No. WDQ-09-2806, 2011 WL 2118843, at *2 (D. Md. May 25, 2011) (quoting O'Meara v. Waters, 464 F.Supp.2d 474, 476 (D. Md. 2006)).
In his Response to Show Cause Order and his Opposition to Defendants' Motion to Dismiss, Plaintiff does not show, or even allege, that he served Defendants with process within 120 days of filing his Complaint or that he had good cause for his delay. Rather, as noted, Plaintiff explains that he intentionally refrained from serving Defendants while he awaited the results of his second trial and subsequent appeal. Pl.'s Resp. to Show Cause Order ¶¶ 4-5 & 8; Pl.'s Opp'n 2. Moreover, Plaintiff argues that his untimely service of process should be acceptable under the circumstances, despite the absence of good cause. Pl.'s Opp'n 2-5.
Because Plaintiff did not carry his burden of showing that he effected timely service of process, Rule 4(m) governs the disposition of this case. It provides:
If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the ...