United States District Court, D. South Carolina, Greenville Division
OPINION AND ORDER
MARVIN QUATTLEBAUM, JR. UNITED STATES DISTRICT JUDGE.
this Court is Defendants Tom Treffinger, Patty Amick, Susan
M. Jones, Matteel Jones, Ross Wagner, Travis Gleaton, and
Courtney Stokes's (“Defendants”) Motion to
Dismiss claims against them pursuant to Fed.R.Civ.P. 12(b)
(1) and (5) on the grounds that Plaintiff Jerry Mullinax
(“Plaintiff”) failed to serve the Summons and
Complaint within the time limit imposed by Fed.R.Civ.P. 4(m).
(ECF No. 14.) The parties' submissions have been
reviewed, and no hearing is necessary. For the reasons set
forth below, the Court DENIES the Motion to Dismiss.
AND PROCEDURAL BACKGROUND
filed this civil rights action on June 6, 2017 against
Defendants Paul O. Batson, III, James W. Blakely, Jr., Jo
Watson Hackl, S. Hunter Howard, Jr., Dean Jones, Ray
Lattimore, Ray Martin, Burke Royster, Coleman Shouse, Keith
R. Smith, Kenneth Southerlin, and David Stafford, members of
the Greenville Technical College Area Commission, as well as
Defendants Tom Treffinger, Patty Amick, Susan M. Jones,
Sharon Bellwood, Ross Wagner and Keith Miller. (ECF No. 1.)
On September 12, 2017, the Court entered a text order
directing Plaintiff to serve Defendants by September 15,
2017, as it appeared Defendants had not yet been served. (ECF
No. 5.) Plaintiff moved the Court for an extension of time
until October 4, 2017, in which to serve Defendants. (ECF No.
7.) That motion was granted on September 14, 2017. (ECF No.
8.) Thereafter, on October 2, 2017, Plaintiff filed
“Authorizations to Accept Service of Process”
signed by defendants Treffinger, Amick, Susan M. Jones and
Wagner in conjunction with a “Notice of Service.”
(ECF No. 9.) Plaintiff filed his Amended Complaint on October
6, 2017 against Treffinger, Amick, Susan M. Jones, Wagner, as
well as new defendants Gleaton, Stokes and Matteel Jones.
(ECF No. 10.) Counsel for Defendants Keith D. Munson accepted
service of the amended complaint for all Defendants on
October 6, 2017. (ECF No. 12.) Thereafter, on November 20,
2017, Defendants moved to dismiss the claims against them
pursuant to Fed.R.Civ.P. 12(b)(1) and (5) on the grounds that
Plaintiff failed to serve the Summons and Complaint within
the time limit imposed by Fed.R.Civ.P. 4(m).
12(b)(1) motion may be used to attack the existence of
subject matter jurisdiction apart from the pleadings.
Materson v. Stokes, 166 F.R.D. 368, 371
(E.D.Va.1996). Under a Rule 12(b)(1) motion, the plaintiff
bears the burden of showing that federal jurisdiction is
appropriate when challenged by the defendant. Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir.1982). Additionally,
the procedural requirement that summons be properly served
must be satisfied before a federal court may exercise
personal jurisdiction over a defendant, thus a motion to
dismiss for insufficient process is permitted by Rule
12(b)(5). Omni Capital Int'l, Ltd. v. Rudolf Wolff
& Co., 484 U.S. 97, 104 (1987); O'Meara v.
Waters, 464 F.Supp.2d 474, 476 (D .Md.2006). The
plaintiff bears the burden of establishing that service of
process has been accomplished in a manner that complies with
Federal Rule of Civil Procedure 4. Plant Genetic
Systems, N.V. v. Ciba Seeds, 933 F.Supp. 519, 526
(M.D. N.C. 1996). Where actual notice is received, Rule 4
“should be liberally construed to effectuate service
and uphold the jurisdiction of the court.” Karlsson
v. Rabinowitz, 318 F.2d 666, 668 (4th Cir.1963).
Nevertheless, “the rules are there to be followed, and
plain requirements for the means of effecting service of
process may not be ignored.” Armco, Inc. v.
Penrod-Stauffer Bldg. Systems, Inc., 733 F.2d 1087, 1089
argue that this matter should be effectively dismissed as of
October 4, 2017, because, as of that date, none of the
defendants had been formally served with the original
complaint. (ECF No. 14 at 6-7.) Plaintiff responds that he
considered the original defendants to have been served as of
September 20, 2017, based on the authorizations to accept
service executed by those Defendants and Mr. Munson's
possession of the original complaint, and the new defendants
as of October 11, 2017, when Mr. Munson executed an
acceptance of service of the amended complaint on behalf of
the new defendants. (ECF No. 18 at 2-3.)
Rule of Civil Procedure 4(m) requires a plaintiff to serve a
defendant within 90 days after the complaint is filed. If the
defendant is not timely served, “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.” Fed.R.Civ.P.
4(m). However, “if the plaintiff shows good cause for
the failure, the court must extend the time for service for
an appropriate period.” Id. To show
“good cause, ” a plaintiff must demonstrate that
he made “‘reasonable, diligent' efforts to
effect service on the defendant.” T &S Rentals
v. U.S., 164 F.R.D. 422, 425 (N.D.W.Va. 1996) (internal
citation omitted). “Courts typically find good cause to
extend the Rule 4(m) time limit where external factors stifle
a plaintiff's due diligence in effecting service.”
Clyburn v. Champagne, No. 6:10-1925-TMC, 2012 WL
4478971, *5 (D.S.C. Sept. 28, 2012) (internal quotations and
alterations omitted). For example, courts have found good
cause where “the defendant was evading service; the
plaintiff experienced difficulty in obtaining defendant's
proper address; the plaintiff was misdirected by court
personnel as to proper procedure; or a defect in the
attempted service was not revealed by the defendant until
after the time expired.” Perri-Clair v. Ace
P'ship of Charleston SC, No. 2:09-CV-1584-MBS, 2011
WL 765671, *2 (D.S.C. Feb.23, 2011)(internal citation and
unpublished decision, the Fourth Circuit has held that
“[e]ven if a plaintiff does not establish good cause,
the district court may in its discretion grant an extension
of time for service. Giacomo-Tano v. Levine, 199
F.3d 1327, *1 (4th Cir. 1999) (unpublished opinion); see
also Fed. R. Civ. P. 4(m) advisory committee's notes
(1993) (“[Rule 4(m) ] explicitly provides that the
court shall allow additional time if there is good cause for
the plaintiff's failure to effect service in the
prescribed 120 days, and authorizes the court to relieve a
plaintiff of the consequences of an application of this
subdivision even if there is no good cause shown.”);
Henderson v. United States, 517 U.S. 654, 663 (1996)
(“Most recently, in 1993 amendments to the Rules,
courts have been accorded discretion to enlarge the 120-day
period ‘even if there is no good cause
shown'”); cf. Mendez v. Elliott, 45 F.3d
75 (4th Cir. 1995)(analyzing Rule 4(m) in the same manner as
predecessor Rule 4(j) as it relates to the district
court's discretion where no good cause is shown).
light of Plaintiff's representations, the Court finds
that sufficient good cause did exist to warrant any delay in
service beyond the time frame prescribed by Rule 4(m) as to
the original defendants. The Court notes that there is no
evidence that the delay caused prejudice to Defendants.
Further, as it relates to newly added defendants, the time to
serve those defendants runs from the filing of the new
complaint. See generally McGuckin v. United States,
918 F.2d 811, 813 (9th Cir. 1990) (holding that time to serve
defendants added in the new complaint runs from filing of new
complaint); see also Rullan v. Goden, No.
CCB-12-2412, 2016 WL 1159112, at *9 (D. Md. Mar. 24,
2016)(noting that the time limit for service provided by Rule
4(m) is not restarted by the filing of an amended complaint
except as to those defendants newly added in the amended
complaint); Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1137 (4th ed.)(adding a
new party through an amended complaint initiates a new
note, Mr. Munson accepted service of the Amended Complaint on
behalf of the new defendants Matteel Jones, Travis Gleaton,
Courtney Stokes, as well as Treffinger, Amick, Susan M.
Jones, and Ross Wagner on October 11, 2017. (ECF No. 12.) As
a result, the sufficiency of the “Authorizations to
Accept Service of Process” is of little consequence.
Further, no prejudice would result to any Defendants who have
all been served with the operative complaint. Furthermore, a
dismissal without prejudice at this stage of the litigation
would not serve in the interests of judicial economy. Indeed,
the Fourth Circuit has noted the “policy of deciding
cases on their merits is so strong that, when a plaintiff has
committed a procedural error, we will allow a district court
to impose on him the harsh sanction of prejudicial
dismissal…only in the extreme cases.” Choice
Hotels Int'l, Inc. v. Goodwin & Boone, 11 F.3d
469, 472 (4th Cir. 1993) (internal citations and quotations
omitted). With these principles in view, Defendants'
Motion to Dismiss is denied. A Scheduling Order will be
issued promptly in this case.
reasons stated above, Defendants' Motion to Dismiss (ECF
No. 14) pursuant to Rule ...