Vasser v. Dallas-Selma CA & CDC Inc

Filing 41

Order directing the Plaintiff to perfect service on the unserved defendants which are Lawrence (and/or the United States), Twitty and Ingram and to provide proof of such service by 12/6/2011. Signed by Chief Judge William H. Steele on 10/20/2011. Copy of order & 3 blank summons mailed to Plaintiff. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
LARRY DONNELL VASSER,

)
)
Plaintiff,
)
)
v.
) CIVIL ACTION 11-0234-WS-B
)
DALLAS-SELMA CA &CDC, INC., etc., )
et al.,
)
)
Defendants.
)
ORDER
As set forth in previous orders, the plaintiff failed to perfect service on defendants
Lawrence (and/or the United States), Twitty and Ingram within the time required by
Federal Rule of Civil Procedure 4(m). (Doc. 33 at 2-3; Doc. 34 at 1-2). The Court
accordingly ordered the plaintiff to show cause why his action as to these defendants
should not be dismissed without prejudice pursuant to Rule 4(m).
As set forth in the Court’s previous orders, the Court must provide additional time
to perfect service if the plaintiff shows good cause for his failure. As to all three
defendants, the plaintiff acknowledges that he knew when he obtained summonses that
they had left their employment, yet he nevertheless directed summons not to them at their
residences or new places of employment but to their successors at their previous places of
employment, trusting the successors to notify the defendants. (Docs. 38, 39). This does
not reflect good cause for failure to serve the defendants. 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). In
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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 1132.1 There is no
indication or allegation that the defendants are evading service or are concealing defects
in service. However, it appears that the statute of limitations has expired as to all of the
plaintiff’s claims, such that any dismissal under Rule 4(m) would bar the refiling of the
lawsuit as to these defendants. Accordingly, the Court exercises its discretion in favor of
extending the time for service.
The plaintiff is ordered to perfect service on the unserved defendants, and to file
proof of such service, on or before December 6, 2011 (seven months after the amended
complaint was filed), failing which his action as to these defendants will be dismissed
without prejudice pursuant to Rule 4(m).
DONE and ORDERED this 20th day of October, 2011.

s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

1

This is “not an exhaustive list” of factors a court may consider, Lepone-Dempsey, 476
F.3d at 1182, but the plaintiff identifies no others.

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