Silvia Martinez v. US
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:13-cv-00237-DKC. Copies to all parties and the district court/agency. [999389591]. [14-1045]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1045
SILVIA G. MARTINEZ,
Plaintiff – Appellant,
v.
UNITED STATES OF AMERICA; UNITED STATES
POSTAL SERVICE,
Defendants – Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Deborah K. Chasanow, Chief U.S.
District Judge. (8:13-cv-00237-DKS)
Submitted:
June 2, 2014
Decided:
July 7, 2014
Before KING, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kenneth J. Coughlan, ANNE HOKE & ASSOCIATES, Baltimore,
Maryland, for Appellant.
Rod J. Rosenstein, United States
Attorney, Jakarra J. Jones, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Silvia
Martinez
appeals
the
dismissal
of
her
claim
for
untimely service of process pursuant to Federal Rule of Civil
Procedure 4(m).
Although Martinez acknowledges that she did not
timely serve process, she argues that the district court erred
by failing to grant an extension of time required by Rule 4(m).
For the reasons that follow, we affirm.
I.
On January 23, 2013, Martinez filed a complaint against the
United
States
pursuant
to
U.S.C. §§ 2671, et seq.
collision
with
a
the
Federal
Tort
Claims
Act.
28
Her claim arose from an automobile
United
States
Postal
Service
district court issued summonses the next day.
vehicle.
The
On May 28, 125
days after the filing of the complaint, the district court had
received no proof that the complaint and summons had been served
on
the
United
Martinez
States,
addressing
the
and
issue
requested
of
a
status
service.
report
Martinez
from
did
not
respond.
On June 13, the court ordered Martinez to show cause why
her
complaint
should
not
be
dismissed
process within the requisite time period.
4(m).
for
failure
to
serve
See Fed. R. Civ. P.
On June 25, Martinez filed a memorandum in support of a
request for an extension of time.
She stated that her attorney
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had changed his primary email address but had failed to register
the change in the court’s electronic case filing system (“ECF”)
and
therefore
issued.
had
not
been
informed
that
the
summonses
had
Martinez conceded that her attorney had been unaware of
the problem at the time, but asserted that he had subsequently
corrected
the
email
address.
The
district
court
granted
Martinez’s motion, allowing her 30 additional days, until July
30, to serve the United States.
Martinez served the United States on August 15, twenty days
after the expiration of the extension.
On November 18, the
United States moved to dismiss Martinez’s complaint for failure
to timely serve process.
Fed. R. civ. P. 12(b)(5).
Martinez
filed a response claiming that she was entitled to a further
extension because the ECF continued to send notifications only
to her attorney’s incorrect email address, despite his diligent
attempts to correct this problem.
The district court found that
Martinez could show neither good cause nor excusable neglect for
her
failure
to
serve,
and
granted
the
government’s
motion.
Martinez timely appealed.
II.
We
review
the
dismissal
of
a
complaint
timely serve process for abuse of discretion.
3
for
failure
to
Shao v. Link
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Cargo (Taiwan) Ltd., 986 F.2d 700, 708 (4th Cir. 1993) (applying
Rule 4(m)’s predecessor, Rule 4(j)).
III.
Rule
4(m)
requires
within 120 days.
a
plaintiff
to
serve
the
defendant
A plaintiff may escape dismissal for failure
to timely serve process only if she demonstrates “good cause”
for the delay.
Fed R. Civ. P. 4(m).
If a plaintiff requests an
extension of time after the expiration of the 120 day limitation
period, she must also show that she “failed to act because of
excusable neglect.”
Fed.R.Civ.P. 6(b)(1)(B).
Martinez acknowledges that she did not serve process within
the limitation period and that she did not request an extension
until
after
the
expiration
of
that
period.
Therefore,
to
prevail on appeal, Martinez must show both excusable neglect and
good cause.
Because Martinez cannot show excusable neglect, we
need not reach the question of good cause.
Martinez argues that her failure to timely serve process
constitutes excusable neglect because it was the result of an
error within the ECF that was outside her control.
We disagree.
“Excusable neglect is not easily demonstrated.”
Thompson
v. E.I. DuPont de Nemours & Co., Inc., 76 F.3d 530, 533 (4th
Cir.
1996)
(internal
quotation
marks
omitted)(interpreting
excusable neglect in the context of Federal Rule of Appellate
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Procedure 4(a)(5)).
We have held that “a party that fails to
act
will
with
conduct
diligence
constituted
Filtration
Corp.,
be
unable
excusable
LLC,
599
to
establish
neglect.”
F.3d
that
Robinson
403,
413
[her]
v.
(4th
Wix
Cir.
2010)(interpreting excusable neglect as used in Federal Rule of
Civil Procedure 60(b)(1)). *
Here, Martinez’s attorney was clearly aware that the ECF
was sending notifications to an improper email address before
the extension was granted.
problem,
a
reasonably
Even if he believed he had fixed the
diligent
attorney
would
have
monitored
that email address or the court’s docket until he was certain
that
the
ECF
was
functioning
properly.
Martinez
cannot
establish that her conduct constituted excusable neglect.
We
therefore find no abuse of discretion in the district court’s
dismissal of her complaint.
*
Excusable neglect generally has the same meaning
throughout the federal procedural rules. See, e.g. Pioneer Inv.
Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S.
380, 392 (interpretation of excusable neglect as used in Federal
Rule of Bankruptcy Procedure 9006(b)(1) was “strongly supported”
by the meaning of excusable neglect as used in Federal Rule of
Civil Procedure 6(b)); Thompson, 76 F.3d at 534–35 (excusable
neglect interpreted the same in Federal Rule of Bankruptcy
Procedure 9006(b)(1) as in Federal Rule of Appellate Procedure
4(a)(5)).
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IV.
For
the
foregoing
Martinez’s claim.
facts
and
legal
reasons,
we
affirm
the
dismissal
of
We dispense with oral argument because the
contentions
are
adequately
presented
in
the
materials before this court and argument would not aid in the
decisional process.
AFFIRMED
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