Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 96-60020
Summary Calendar
_______________
ROBERT E. THOMPSON,
Plaintiff-Appellant,
VERSUS
JESSIE BROWN,
Secretary of Veterans Affairs,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_________________________
July 25, 1996
Before GARWOOD, SMITH, and BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Robert E. Thompson filed suit against Jessie Brown, Secretary
of Veterans Affairs, for alleged violations of title VII of the
Civil Rights Act of 1964 and the Americans with Disabilities Act of
1991. Thompson failed to deliver a copy of the summons and
complaint to the attorney for the Southern District of Mississippi
and the Attorney General of the United States, as required by FED.
R. CIV. P. 4(i). The District Court dismissed the suit, without
prejudice, for failure to serve a defendant within 120 days. FED.
R. CIV. P. 4(m). We affirm.

I.
Thompson concedes that he did not have good cause for his
failure to serve the United States Attorney and the Attorney
General but argues that the district court should have exercised
its discretion to grant him an extension of time for service.
Thus, as a threshold matter, we must decide whether rule 4(m),
unlike its predecessor FED. R. CIV. P. 4(j), grants a district court
discretion to permit an extension of time for service, absent a
showing of good cause.
We agree with the majority of circuits that have found that
the plain language of rule 4(m) broadens a district court's
discretion by allowing it to extend the time for service even when
a plaintiff fails to show good cause.1 See, e.g., Espinoza v.
United States, 52 F.3d 838, 840 (10th Cir. 1995); Petrucelli v.
Bohringer and Ratzinger, 46 F.3d 1298, 1304 (3d Cir. 1995). Rule
4(m) states:
Time Limit for Service. If service of the summons and
complaint is not made upon a defendant within 120 days
after the filing of the complaint, the court, upon motion
or on its own initiative after notice to the plaintiff,
shall dismiss the action without prejudice as to that
defendant or direct that service be effected within a
specified time; provided that if the plaintiff shows good
cause for the failure, the court shall extend the time
for service for an appropriate period.
Under rule 4(m), when a plaintiff fails to serve a defendant within
1 We necessarily reject the Fourth Circuit's approach, which treats rule
4(m) as identical to the former rule 4(j). See Mendez v. Elliot, 45 F.3d 75, 78
(4th Cir. 1995). The Mendez opinion provides no insight as to why the court
disregarded the plain language of rule 4(m) and instead treats the rule as the
mirror image of rule 4(j). See Mendez, 45 F.3d at 78 (concluding, without
explanation, that rule 4(j) was edited without a change in substance and
renumbered as rule 4(m)).
2

the 120-day period, the district court has two choices: It may
either "dismiss the action without prejudice . . . or direct that
service be effected within a specified time." FED. R. CIV. P. 4(m)
(emphasis added). The next portion of the rule qualifies the
district court's choices, making an extension of time mandatory
when the plaintiff shows good cause.
As a result of the rule change, when a district court
entertains a motion to extend time for service, it must first
determine whether good cause exists. If good cause is present, the
district court must extend time for service. If good cause does
not exist, the court may, in its discretion, decide whether to
dismiss the case without prejudice or extend time for service. See
generally Petrucelli, 46 F.3d at 1305-06 (discussing the procedure
a district court must adopt under the amended rule).
II.
The entire basis of Thompson's appeal is that the district
court failed even to consider whether it should exercise its
discretion to grant an extension. From the court's failure to
assert its discretionary powers, Thompson infers a conclusion by
the district court that it did not have the power to grant an
extension absent a showing of good cause. If the inference is
true, the district court applied an incorrect legal standard and,
as such, abused its discretion.
Our review of the record convinces us that Thompson is
mistaken. The absence of a discussion of the district court's
3

discretionary powers in the court's order does not demonstrate that
the court misapplied rule 4(m). The court's failure to discuss its
discretionary power is more properly attributed to the fact that
Thompson did not raise the issue. Rather than concede lack of good
cause and ask the court to grant an extension, Thompson argued that
the defendant had waived the jurisdictional defect by filing an
answer, participating in the case management conference, and
joining in an agreed order of dismissal of improperly named
defendants. Not once did Thompson assert that the court should
excuse his neglect in failing to serve the defendants.
Absent any indication that Thompson raised the issue before
the district court, his claim that the court applied the incorrect
legal standard is insupportable. The court properly dismissed the
claim once it had satisfied itself that good cause did not exist.
Once Thompson admitted lack of good cause and failed to ask the
court for an extension of time, the court was under no obligation
to exercise its discretion.
Thompson's final allegation is that the district court relied
on cases interpreting rule 4(j), proving that the court incorrectly
believed that it did not have discretion to grant an extension of
time. This argument has no merit. The cases cited by the court
relate to Thompson's claim that the defendant waived its jurisdic-
tional defenses. In rejecting that argument the court cited two of
its previous opinions, Turner v. United States E.P.A., 848 F. Supp.
711 (S.D. Miss. 1994), and Classic Motel, Inc. v. Coral Group, 149
F.R.D. 528 (S.D. Miss. 1993), for the proposition that the
4

defendant did not waive lack of subject matter jurisdiction by
filing an answer and participating in case management. That
general proposition of law was not affected by the amendments to
rule 4, and the court's citation to them does not demonstrate any
confusion.
AFFIRMED.
5