United States District Court, D. Maryland
MAIMOUNA A. GBANE, Plaintiff,
CAPITAL ONE, NA and ERIC GUTIERREZ, Defendants.
Xinis United States District Judge
before the Court is Capital One, NA and Eric Gutierrez'
(the "Defendants") Motion to Dismiss for Maimouna
Gbane's ("Plaintiff") failure to timely serve
on Defendants the Complaint pursuant to Rule 4(m) of the
Federal Rules of Civil Procedure. ECF No. 11. Based on the
plain language of the rule and this Circuit's precedent,
the Court will grant Defendant's Motion to Dismiss
filed her Complaint on March 9, 2016 and at all times was
represented by counsel. ECF No. 1. Due to the Plaintiff's
omission of the proposed summonses in her initial filing (ECF
No. 2), the Clerk of this Court issued summonses for
Defendants when the Plaintiff properly filed the proposed
summonses on March 16, 2016, which were to be served on
Defendants, pursuant to Rule 4(m) by no later than June 9,
2016. ECF No. 7.
never served the Defendants within that time frame nor did
she ask for an enlargement of time pursuant to Rule 6(b) of
the Federal Rules of Civil Procedure. Rather, on May 27,
2016, Plaintiff erroneously moved for the court to
"reissue" the summons, which the Court promptly
denied on June 2, 2016. ECF No. 10. In that Order, the Court
expressly advised Plaintiff that "[s]ummonses issued in
this District do not expire, " and highlighted that
Plaintiff had "90 days from the date the Complaint is
filed to effect service." Id. (emphasis added).
the Court's Order issued a full week prior to the 90-day
deadline, Plaintiff failed to perfect service. On June 10,
Defendants moved to dismiss the instant action. ECF No. 11.
The next day, Plaintiff served Defendant (ECF No. 13-3) then
opposed Defendants' Motion to which Defendants replied.
ECF Nos. 13 & 16.
4(m) requires a plaintiff to serve a defendant "within
90 days after the complaint is filed." If the defendants
have not been served within this time frame, "the court
. . . must dismiss the action without prejudice against that
defendant." Fed.R.Civ.P. 4(m) (emphasis added). However,
"if the plaintiff shows good cause for the failure, the
court must extend the time for service for an appropriate
cause" generally requires the Plaintiff to demonstrate
that she exercised "reasonable diligence in trying to
effect service." Jones v. Sears and Roebuck,
No. DKC-15-3092, 2016 WL 1696557, at *2 (D. Md. Apr. 28,
2016). Circumstances amounting to good cause may be
"where a defendant is evading service; where the
plaintiff experienced difficulty in obtaining a
defendant's proper address; where court staff misdirected
a pro se plaintiff as to the appropriate procedure
for service; or where plaintiff was unaware of the defendant
in service until after the deadline expired."
Id. (citing Hoffman v. Balt. Police
Dep't, 379 F.Supp.2d 778, 786 (D. Md. 2005)).
the "good cause" standard is a stringent one where
claims of delay from personal tragedy or illness do not
suffice. See, e.g., Braithwaite v. Johns Hopkins
Hosp., 160 F.R.D. 75, 78 (D. Md. 2005) (holding murder
of pro se plaintiff's daughter not "good
cause"); Knott v. Atlantic Bingo Supply, Inc.,
No. JFM-05-1747, 2005 WL 3593743, at *1-2 (D. Md. Dec. 22,
2005) (serious illness of plaintiff's counsel was not
good cause). Accordingly, Plaintiff's enduring the
desertion of her spouse and an out-of-state move at some
non-specific time in the past, while sad, do not excuse her
failure to comply with Rule 4(m). In fact, Plaintiff can
point to no evidence that she pursued service in a reasonably
diligent manner even after the Court expressly warned her of
the filing requirements and the time constraints a full week
in advance of the 90-day expiration. ECF No. 10. The fact
that Plaintiff easily served Defendants, albeit out of time,
further undermines any showing of good cause.
troubling, however, is Plaintiff's claim that she will be
unable to refile her complaint even if the Court dismisses
without prejudice because she will be barred by limitations.
ECF No. 13-1 at 2. This Court is mindful of the "sound
public policy of deciding cases on their merits, "
which, at times, requires forgiving a procedural error rather
than imposing the harsh sanction of prejudicial dismissal.
Herbert v. Saffell, 877 F.2d 267, 269 (4th Cir.
1989) (internal quotation marks omitted). Likewise, the 1993
Advisory Committee's Notes to Rule 4(m), while not
binding, state that Rule 4(m) "authorizes the court to
relieve a plaintiff of the consequences of an application of
this subdivision even if there is no good cause
shown, " and "[r]elief may be justified, for
example, if the applicable statute of limitations would bar
the refiled action." Fed.R.Civ.P. 4(m) advisory
committee's note (1993). See also Henderson v. United
States, 517 U.S. 654, 658 n.5 (1996) (noting in dicta
that "current Rule 4(m) . . . permits a district court
to enlarge the time for service ‘even if there is no
good cause shown.'") (quoting Fed.R.Civ.P. 4(m)
advisory committee's note (1993)).
"while Rule 4(m) and the Advisory Committee's note
discussing it are informative, they still must be construed
in concert with the latest published Fourth Circuit opinion
to address Rule 4(m), Mendez v. Elliott, 45 F.3d 75
(4th Cir. 1995)." Defrietas v. Montgomery
County, No. PWG-12-2893, 2014 WL 31885, at *3 (D. Md.
Jan. 3. 2014) (quoting Tann v. Fisher, 276 F.R.D.
190, 194 (D. Md. 2011)) (internal quotation marks omitted).
Mendez, the Fourth Circuit announced that "Rule
4(m) requires that good cause be shown for obtaining
an extension." Mendez, 45 F.3d at 80 (emphasis
added). More recently, the Fourth Circuit affirmed, in an
unpublished opinion, the District Court's dismissal of a
Complaint under Rule 4(m) even though limitations barred
refiling. See Chen v. Mayor & City Council of
Baltimore, 546 F.App'x 187, 188 (4th Cir. Nov. 12,
2013) (per curiam). The District Court in Chen held
that it had no discretion under Mendez to extend the
Rule 4(m) deadline absent a good cause, and that the
limitations bar to refiling did not amount to good cause.
See Chen v. Mayor & City Council of Baltimore, 292
F.R.D. 288, 293-94 (D. Md. 2013). Because the Fourth Circuit
affirmed Chen "for the reasons stated by the
district court, " Chen, 546 F.App'x at 188,
members of this bench view Chen as reaffirming the
good cause requirement set forth in Mendez. See
Galindo v. ASRC Fed. Holding Co., LLC, GJH-15-940, 2016
WL 2621949, at *2 (D. Md. May 5, 2016) ("Good cause
requires a showing that the plaintiff made reasonable and
diligent efforts to effect service prior to the 120-day
limit." (quoting Chen, 292 F.R.D. at 293)
(internal quotation marks omitted)); Smith v. Ocwen-Loan
Servicing LLC, No. ELH-15-00424, 2015 WL 4092452, at *3
(D. Md. July 6, 2015) (describing Chen as where
"the Fourth Circuit appears to have clarified its
position on whether a district court has discretion to extend
the Rule 4(m) deadline without good cause shown.");
Malibu Media, LLC v. Doe, No. WMN-14-3384, 2015 WL
2345547, at *2 (D. Md. May 14, 2015) (denying plaintiff's
motion for extension of time "[u]nder Mendez
and Chen as it stands"); Malibu Media v.
John Doe, No. ELH-14-288, 2014 WL 7507259, at *4 (D. Md.
Dec. 24, 2014) ("Pending a decision by the Supreme Court
in Chen, however, Mendez is binding upon
this Court."); Defrietas, 2014 WL 31885, at *4
("Once again, for the reasons stated in Tann
and Chen, I conclude that Mendez is still
controlling law, and the doctrine of stare decisis
counsels that this case must be dismissed, as Plaintiff has
not shown good cause of failing to effect timely service of
process."). This Court agrees.
it is this 29th day of June, 2016, Defendants'
motion to dismiss will be GRANTED. A separate order will
reasons stated in the foregoing Memorandum Opinion, it is
this 29th day of June, 2016, by the United States District