United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge.
to Crystal Showell, Atlanticus Services Corporation
(“Atlanticus”), which she incorrectly refers to
as Fortiva Retail Credit, has been misrepresenting her debts
and causing damage to her credit score. Compl., ECF No. 1.
When Atlanticus did not address her concerns after she
disputed the debts it reported, Showell filed suit in this
Court. Id. More than ninety days elapsed before
Showell served Atlanticus. See Proof of Serv. 3, ECF
No. 7; Pl.'s Opp'n 2.
is Atlanticus's motion to dismiss for failure to effect
timely service of process. ECF No. 9. Although it is undisputed
that Showell did not timely serve Atlanticus, see
Pl.'s Opp'n 2, Showell has shown that she attempted
service twice and explained her delay. Therefore, I will ask
Atlanticus to notify Showell and the Court whether it will
accept service, as defendants are encouraged to do by
Fed.R.Civ.P. 4(d), and, if not, Showell will have thirty days
after that notice to effect proper service of process.
30, 2018, the same day that she filed suit, Showell mailed a
copy of the Complaint to Atlanticus via first-class,
certified mail, return receipt requested. See Proof
of Serv. 1; Pl.'s Opp'n 2. Then on September 6, 2018,
believing that she had served Atlanticus and the corporation
had not responded, she filed a motion for summary judgment.
See Sept. 12, 2018 Ltr. Order, ECF No. 5; Pl.'s
Mot. 1, ECF No. 5-1 (first page of returned motion only).
Yet, she had not properly served Atlanticus and she did not
do so until November 12, 2018, see Proof of Serv. 3,
after the close of the ninety-day period that Rule 4(m)
provides for service. See Fed. R. Civ. P. 4(m).
insists that she was not aware that she did not effect proper
service until the Court issued a show cause order, ECF No. 6,
on October 31, 2018. Pl.'s Opp'n 2. Indeed, when she
submitted what she believed to be proof of service along with
her motion for summary judgment, the Court did not recognize
it as proof of service (because it was not) and,
consequently, returned the improperly-filed motion without
explaining that she had not effected service. See
Sept. 12, 2018 Ltr. Order. She then understood the show cause
order to grant her a “14 day grace period” to
effect service, which she did on November 12, 2018.
See Pl.'s Opp'n 2; Proof of Serv. But, by
then, more than ninety days had passed since she filed suit.
Atlanticus contends that, under these circumstances,
Showell's complaint must be dismissed. Def.'s Mot. 1.
of process is a prerequisite for litigating in federal court;
without it, a court may not exercise personal jurisdiction
over a defendant. See Omni Capital Int'l, Ltd. v.
Rudolf Wolff & Co., 484 U.S. 97, 104
(1987); Hawkins v. i-TV Digitalis Tavkozlesi zrt.,
___F.3d ___, No. 2019 WL 3819311, at *12 (4th Cir. Aug. 15,
2019). Thus, if a defendant is not properly served, including
if the defendant is not served within the ninety-day period
set by Rule 4(m), the defendant may seek dismissal for
insufficient service of process. See Fed. R. Civ. P.
12(b)(5); Fed.R.Civ.P. 4(c)(1) (“A summons must be
served with a copy of the complaint. The plaintiff is
responsible for having the summons and complaint served
within the time allowed by Rule 4(m) ….”). When
the defendant challenges the sufficiency of service,
“the plaintiff bears the burden of establishing the
validity of service pursuant to Rule 4.” Moseley v.
Pollozzi, No. RDB-18-1292, 2019 WL 418407, at *2 (D. Md.
Feb. 1, 2019) (quoting Parker v. Am. Brokers
Conduit, 179 F.Supp.3d 509, 515 (D. Md. 2016)). The
“plain requirements for the means of effective service
of process may not be ignored.” Curtis v. Md.
Envtl. Serv., No. RDB-17-2728, 2018 WL 1394020, at *2
(D. Md. Mar. 19, 2018).
argues that the Court should dismiss the Complaint, not only
due to ineffective service of process but also because
Showell did not respond to the October 31, 2018 show cause
order. Def.'s Mot. 1. Yet, Showell did respond to the
order, by filing a proof of service on November 15, 2018.
Although this response reached the Court one day beyond the
fourteen-day deadline, given that Rule 6(d) provides that
“[w]hen a party may or must act within a specified time
after being served and service is made under Rule 5(b)(2)(C)
(mail) …, 3 days are added after the period would
otherwise expire under Rule 6(a), ” Fed.R.Civ.P. 6(d),
I accept Showell's response to the order.
service, Ms. Showell attempted twice to serve Atlanticus, and
by her own admission both attempts were faulty. See
Pl.'s Opp'n 2. She concedes that her first attempt-on
July 30, 2018, without the summons-did not constitute service
of process, and that her second attempt, on November 12,
2018, occurred after the ninety-day window. See Id.
Under Rule 4(m), a court that finds service of process was
untimely has two options: “dismiss the action without
prejudice against that defendant or order that service be
made within a specified time.” Fed.R.Civ.P. 4(m). When
“the plaintiff shows good cause for the failure,
” the court only has one option: It “must extend
the time for service for an appropriate period.”
Id. (emphasis added).
Rule 4(m) “no longer requires a court to dismiss a
complaint absent a showing of good cause.”
Escalante v. Tobar Constr., Inc., No. 18-980-PX,
2019 WL 109369, at *4 (D. Md. Jan. 3, 2019) (quoting
Robertson v. Beacon Sales Acquisition, No.
GJH-16-3241, 2018 WL 2464455, at *3 n.7 (D. Md. May 31,
2018)); see also, e.g., Whetstone v. Mayor &
City Council of Balt. City, No. ELH-18-738, 2019 WL
1200555, at *7 (D. Md. Mar. 13, 2019). These cases hold
“it is within the Court's discretion to extend
plaintiffs time to serve under Rule 4(m).”
Whetstone, 2019 WL 1200555, at *7.
Whetstone illustrates some of the considerations a
court may take into account in deciding to exercise this
discretion. There, the plaintiff was between 63 and 130 days
late in serving the various defendants she had sued. 2019 WL
1200555, at *7. Judge Hollander did not determine, one way or
the other, whether there was good cause to extend the
deadline. She did note, though, that the plaintiff had
attempted to effect service by the deadline; that the
defendants did not assert that the delay prejudiced them; and
that dismissal would likely bar the plaintiff from refiling
the suit. See Id. at *8. She opted on the basis of
these considerations to exercise her discretion to extent the
Rule 4(m) deadline. Id.
Escalante, the plaintiffs effected service “34
days after the time under Rule 4(m) had elapsed”
because counsel's “assistant misconstrued the
significance of [a] statement” by a Clerk's Office
employee, who said that “summonses never expire,
” and “the assistant did not calendar [the]
deadline by which the Complaint had to be served.” 2019
WL 109369, at *1. Judge Xinis “exercise[d] [her]
discretion to afford the parties full resolution on the
merits and extend[ed] the time to serve the Complaint.”
Id. at *4. Alternatively, noting that, in
unpublished decisions, the Fourth Circuit has held that the
Court may extend the time for service “where
‘plaintiff can show excusable neglect for his failure
to serve, '” Judge Xinis found that the plaintiffs
had established excusable neglect by “articulat[ing] a
sound justification for not serving the Complaint for 60
days” after filing suit and “exhibit[ing] every
intention of serving the Complaint in a timely manner.”
Id. at *3, *5 (quoting Hasan v. Fairfax Cty.
Sch. Bd., 405 Fed.Appx. 793, 793-94 (4th Cir. 2010)).
Atlanticus does not argue that it is prejudiced by the delay
in service. Further, Plaintiff attempted to serve Atlanticus
well before the deadline-the same day she filed suit. Also,
she contacted a process server within a week of learning that
service was improper. Under these circumstances, I ...