United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
Xinis United States District Judge.
before the Court are Defendant People for the Ethical
Treatment of Animals, Inc. (“PETA”)'s Motion
to Dismiss for failure to effect service of process under
Federal Rule of Civil Procedure 4(m) and Plaintiffs'
Motion to Extend Time for Service of Process. ECF Nos. 4, 7.
30, 2018, Plaintiffs filed suit against PETA, the Foundation
to Support Animal Protection, Inc., and individual
defendants, alleging violations of the Racketeer Influenced
Corrupt Organizations Act. ECF No. 1. Plaintiffs only
provided the Clerk a summons for one individual defendant.
ECF Nos. 2, 3. On the 92nd day following the filing of the
Complaint, PETA moved to dismiss for failure to effect
service on all defendants. ECF No. 4. Plaintiffs responded
and sought an extension of time to serve the Complaint. ECF
PETA moved to dismiss under Rule 4(m), the Court will
construe PETA's motion as one under Rule 12(b)(5) for
insufficient service of process. Fed.R.Civ.P. 12(b)(5);
see also United States ex rel. Moore v. Cardinal Fin.
Co., No. CCB-12-1824, 2017 WL 1165952, at *6 (D. Md.
Mar. 28, 2017). Where service is contested, “the
plaintiff bears the burden of establishing the validity of
service.” O'Meara v. Waters, 464 F.Supp.2d
474, 476 (D. Md. 2006). The court may construe Rule 4
liberally if service gave the defendant “actual notice
of the pending action.” Id.
“Nevertheless, ‘the rules [of service] are there
to be followed, and plain requirements for the means of
effective service of process may not be ignored.”
Jackson v. Warning, No. PJM 15-1233, 2016 WL 520947,
at *2 (D. Md. Feb. 5, 2016) (quoting Armco, Inc. v.
Penrod-Slauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089
(4th Cir. 1984)).
2015, Rule 4(m) has required service “within 90 days
after the complaint is filed.” Fed.R.Civ.P. 4(m). If a
defendant is not served within 90 days, the court “must
dismiss the action without prejudice against that defendant
or order that service be made within a specified time.”
Id. However, “if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.” Id.
Fourth Circuit, it is unclear whether the court has
discretion to extend the time for service absent good cause.
Bailey v. Bank of Am., No. ELH-16-2243, 2017 WL
1301486, at *7 (D. Md. Apr. 7, 2017). “Nevertheless,
even if good cause is no longer an absolute requirement under
Rule 4(m), ‘the Court would still need to have some
reasoned basis to exercise its discretion and excuse the
untimely service: the Court must give some import to the
rule.'” Id. (quoting Hoffman v. Balt.
Police Dep't, 379 F.Supp. 778, 786 (D. Md. 2005));
see also Cardinal Fin. Co., 2017 WL 1165952, at *8.
failed to effect service because they were
“unaware” that in December, 2015, the time period
for serving a complaint was shortened from 120 days to 90
days. ECF No. 6 ¶ 2. It is long-established that the
“[i]nadvertence or neglect of counsel is not
‘good cause.'” Cardinal Fin. Co.,
2017 WL 1165952, at *7. Likewise, ignorance of the rules is
not a reasoned basis to excuse untimely service. See
Miller v. Tucker, No. 2:13-cv-21753, 20214 WL 989204, at
*3 (S.D. W.Va. Mar. 13, 2014) (“Indeed, for over four
months counsel took no action to prosecute this case or to
familiarize himself with the applicable Rules of Civil
Procedure and practices of the Court in which Plaintiff
elected to file this action.”). Simply put,
Plaintiffs' ignorance of the rule change which took
effect nearly three years ago cannot forgive untimely
also contend that the motion to dismiss should be denied
because dismissal would require Plaintiffs to refile the suit
and incur the requisite filing fee and would delay resolution
on the merits. ECF No. 6 ¶ 4. These consequences,
however, occur in every meritorious motion to dismiss for
insufficient service of process. If dismissal were denied for
these reasons, the “good cause” or
“reasoned basis” exception would swallow the
rule. Moreover, “‘good cause' does not turn
on the implications of granting a motion to dismiss.”
Cardinal Fin. Co., 2017 WL 1165952, at *2. The Court
has been given no sound reason to deny Defendants'
motion. The Court dismisses the Complaint without prejudice.
it is this 13th day of November, 2018, by the
United States District Court for the District of Maryland,
1. The Motion to Dismiss (ECF No. 4) filed by Defendant
People for the Ethical Treatment of Animals, Inc. BE, and the
same hereby IS, GRANTED;
2. The Motion to Extend Time for Service of Process (ECF No.
7) filed by Plaintiffs Robert Candy, Animal Park, Care and
Rescue, Inc., and Tri-State Zoological Park of Western
Maryland, Inc. BE, and the same hereby IS, DENIED;
3. The Complaint (ECF No. 1) filed by Plaintiffs Robert
Candy, Animal Park, Care and Rescue, Inc., and Tri-State
Zoological Park of Western Maryland, Inc. BE, and the same
hereby IS, DISMISSED WITHOUT PREJUDICE; and
4. The Clerk is directed to CLOSE this case and TRANSMIT
copies of this Memorandum Opinion and Order to ...