Aderhold v. Biomet Inc et al

Filing 7

ORDER re 6 Response to Order to Show Cause filed by Susan Aderhold. Plaintiff shall complete service of process within 21 days from the date of this order. Signed by Honorable Timothy D. DeGiusti on 07/28/15. (wh)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
SUSAN ADERHOLD,
Plaintiff,
vs.
BIOMET, INC., et al.,
Defendants.

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Case No. CIV-15-176-D

ORDER
This matter comes before the Court for consideration of Plaintiff’s Response to Order
to Show Cause [Doc. No. 6], filed July 20, 2015. Plaintiff was directed to show cause why
this action should not be dismissed pursuant to Fed. R. Civ. P. 4(m) for lack of service of
process. See Order to Show Cause [Doc. No. 5].
Upon consideration, the Court finds that Plaintiff has not shown good cause for her
failure to effect service of process in a timely manner. The court of appeals has not
conclusively defined “good cause” for purposes of Rule 4, but has determined that the phrase
should be read narrowly and “requires a greater showing than ‘excusable neglect.’” See
Broitman v. Kirkland (In re Kirkland), 86 F.3d 172, 175 (10th Cir. 1996); see also Putnam
v. Morris, 833 F.2d 903, 905 (10th Cir. 1987). Plaintiff states no reason, other than a mistake
by her counsel, why no effort has been made to serve any defendant. The court of appeals
has held that “inadvertence or mistake of counsel or ignorance of the rules” is insufficient.
See Putnam, 833 F.2d at 905; see also Kirkland, 86 F.3d at 176.

Even absent a showing of good cause, the Court “must still consider whether a
permissive extension of time may be warranted.” See Espinoza v. United States, 52 F.3d
838, 841 (10th Cir. 1995). The Court “may in its discretion either dismiss the case without
prejudice or extend the time for service.” Id. Here, Plaintiff requests an additional 30 days
for service. However, a 30-day extension would be insufficient because the 120-day time
limit in this case expired June 19, 2015. Upon consideration, however, the Court will grant
a short extension of time to effectuate service.
IT IS THEREFORE ORDERED that Plaintiff shall complete service of process on all
defendants within 21 days from the date of this Order, or this action may be dismissed
without prejudice for lack of service, and without further notice to Plaintiff.
IT IS SO ORDERED this 28th day of July, 2015.

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