Vision Bank v. R&B Construction of South Alabama, Inc. et al

Filing 25

ORDER denying 24 Motion for Service by Publication. Defendants Brandon Robertson and Rollin Rockett, IV are dismissed without prejudice pursuant to Rule 4(m). Signed by Chief Judge William H. Steele on 5/6/2011. Copies to parties. (mpp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
VISION BANK,
Plaintiff,
v.
R&B CONSTRUCTION OF SOUTH
ALABAMA, INC., et al.,
Defendants.

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) CIVIL ACTION 10-0480-WS-M
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ORDER

This matter is before the Court on the plaintiff’s motion for service by
publication. (Doc. 24). The plaintiff seeks leave to serve the individual defendants in
this manner.
As noted in previous orders, the complaint was filed on September 1, 2010. On
February 4, 2010, the Court ordered the plaintiff to show cause why the action as to the
individual defendants should not be dismissed pursuant to Rule 4(m). (Doc. 15). Under
Rule 4(m), a plaintiff=s failure to perfect service on a defendant within 120 days after
filing the complaint exposes the complaint as to that defendant to dismissal without
prejudice. However, “if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.” Fed. R. Civ. P. 4(m). Good cause
exists “only when some outside factor such as reliance on faulty advice, rather than
inadvertence or negligence, prevented service.” Prisco v. Frank, 929 F.2d 603, 604 (11th
Cir. 1991). Absent good cause, the Court may, but need not, allow additional time.
Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1132 (11th Cir. 2005); accord LeponeDempsey v. Carroll County Commissioners, 476 F.3d 1277, 1281-82 (11th Cir. 2007).

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In response to the Court’s show-cause order, the plaintiff did not attempt to show
good cause for its failure to serve these defendants. Nor did it provide reasons it should
nevertheless be permitted additional time to serve them. Dismissal at that time thus
would have been appropriate. The Court, however, allowed the plaintiff until April 1,
2011 in which to file proof of service. (Doc. 19).
On the deadline for service, the plaintiff sought an additional three weeks, until
April 22, 2011, in which to serve the individual defendants. (Doc. 22). The Court
granted the motion but warned the plaintiff not to expect additional extensions. (Doc.
23). The instant motion was filed on the April 22 deadline for perfecting service.
Assuming without deciding that the plaintiff has made an adequate showing to
support service by publication, its request comes too late. The 120-day period for service
allowed by Rule 4(m) expired on or about December 30, 2010. The plaintiff was entitled
to additional time only on a showing of good cause, which it did not attempt to provide.
The Court twice exercised its discretion to allow additional time despite the absence of
good cause, but that time has now expired.
The plaintiff asserts that the efforts to perfect service it has made since late
February establish good cause under Rule 4(m) and require another extension of time.
The problem is that these efforts did not begin until long after Rule 4(m)’s 120-day
period expired, and the plaintiff cites no authority for the proposition that it can resurrect
the good cause standard once it has expired merely by tardily engaging in serious service
efforts. The whole point of Rule 4(m) is to ensure that those efforts are made promptly at
the outset of the litigation, not many months later. The Court is not obligated by Rule
4(m) to provide the plaintiff yet another extension of time to perfect service.
In determining whether to exercise its discretion to extend the time for service
despite the lack of good cause, a court considers whether the defendant is evading
service, whether it is concealing defects in service, and whether the statute of limitations
will bar the refiling of the lawsuit should it be dismissed. Horenkamp, 402 F.3d at 1132.
None of these factors is present here. The plaintiff seeks service by publication because
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the individual defendants “cannot, after due diligence, be found within the state,” not
because they are evading service. (Doc. 24 at 2). The defendants are not concealing
defects in service, since no service has been had. The suit is for breach of guaranty,
where the breach could not have occurred before November 30, 2006, when the
guaranties were executed, (Doc. 1, Exhibit B), so the statute of limitations could not have
expired.1
It has now been over eight months since the complaint was filed. The Court
concludes that no additional opportunities for service are warranted. Accordingly, the
motion for service by publication is denied. Defendants Brandon Robertson and Rollin
Rockett, IV are dismissed without prejudice pursuant to Rule 4(m).
DONE and ORDERED this 6th day of May, 2011.

s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

1

The guaranties were executed in Georgia, which carries a six-year limitations period for
breach of a guaranty agreement. E.g., Griffin v. Georgia-Pacific Corp., 341 S.E.2d 499, 501
(Ga. App. 1986).

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