Franzo et al v. Careteam Inc et al

Filing 18

ORDER: This case is DISMISSED without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Signed by the Honorable R. Bryan Harwell on 2/7/2017. (hcic, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Lindsay Franzo,

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Plaintiff,
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v.
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Careteam, Inc.; Johanna Haynes; Dr. Bi
)
Akwen Tadzong-Fomundam, M.D.; Dr.
)
Nyabilondi Huguette Ebama, M.D.; Dr.
)
Ramesh Anand Bharadwaj;
)
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Defendants.
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___________________________________ )

Civil Action No.: 4:15-cv-03387-RBH

ORDER

This False Claims Act case was filed on August 25, 2015. On February 9, 2016, the United
States filed its notice of election to decline intervention. On the same date, the Court unsealed the
case and ordered that the Complaint be served on the Defendants. As of the date of this Order,
Plaintiff has not filed a proof of service indicating service of the Summons and Complaint on the
Defendants. On January 25, 2017, the Court issued a Text Order providing notice to Plaintiff that
the case would be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil
Procedure if, by February 4, 2017, Plaintiff did not file proof of service, or show good cause why
Defendants had not been served within the time prescribed by Rule 4(m), Fed. R. Civ. P. See [ECF
No. 16]. To date, Plaintiff has not filed a proof of service or any response or reply to the Court’s
Text Order ECF No. 16. There has been no further activity in this case since February 9, 2016.
The Federal Rules of Civil Procedure require that a defendant be served with a summons and
a copy of the complaint within 90 days after the complaint is filed, or for removal cases, within 90

days from the date of removal.1 Fed. R. Civ. P. 4(m); Wallace v. Microsoft Corp., 596 F.3d 703,
706 (10th Cir. 2010). A plaintiff may escape dismissal for failure to timely serve process only if he
demonstrates “good cause” for the delay. Fed. R. Civ. P. 4(m). To show “good cause,” a plaintiff
must demonstrate that he made “‘reasonable, diligent’ efforts to effect service on the defendant.” T
& S Rentals v. United States, 164 F.R.D. 422, 425 (N.D.W.Va.1996). Courts typically find good
cause to extend the Rule 4(m) time limit where “‘external factors . . . stifle a plaintiff’s due
diligence’ in effecting service.” McCollum v. Genco Infrasructure Solutions, No. 3:10-cv-210,
2010 WL 5100495, *2 (E.D. Va. Dec. 7, 2010) (quoting T & S Rentals, 164 F.R.D. at 425).
Typically, good cause is found to exist when some outside factor, rather than inadvertence or
negligence, prevented service. Clyburn v. Champagne, No. 6:10-1925-TMC, 2012 WL 4478971,
*5 (D.S.C. Sept. 28, 2012); see also 4B Charles Alan Wright & Alan R. Miller, Federal Practice
and Procedure: Civil § 1137 (3d ed. 2002) (observing that “good cause is likely (but not always) to
be found when the plaintiff’s failure to complete service in timely fashion is a result of the conduct
of a third person, typically the process server”). “Counsel’s negligent failure to perfect service does
not support a showing of good cause.” Id. (citing McCollum, 2010 WL 5100495, at *2).
However, “[e]ven if a plaintiff does not establish good cause, the district court may in its
discretion grant an extension of time for service.” See Giacomo–Tano v. Levine, 199 F.3d 1327, *1 (4th
Cir. 1999) (Table) (citations omitted). If a plaintiff requests an extension of time after the expiration
of the 120 day limitation period, he must also show that he “failed to act because of excusable neglect.”
Fed. R. Civ. P. 6(b)(1)(B). “Excusable neglect is not easily demonstrated.” Martinez v. United States,

1

Prior to December 1, 2015, Rule 4(m) provided a 120 day deadline for serving the summons and
complaint. Effective December 1, 2015, Rule 4(m) was amended and the time for perfecting service was
shortened to 90 days.

2

578 Fed. App’x 192, 194 (4th Cir. 2014) (quoting Thompson v. E.I. DuPont de Nemours & Co., Inc.,
76 F.3d 530, 533 (4th Cir. 1996) (internal quotation marks omitted). The Fourth Circuit “ha[s] held that
‘a party that fails to act with diligence will be unable to establish that [her] conduct constituted
excusable neglect.’” Id. (quoting Robinson v. Wix Filtration Corp., LLC, 599 F.3d 403, 413 (4th Cir.
2010)).
Plaintiff has failed to make a showing of good cause or excusable neglect and has offered no
explanation or reason as to why she failed to serve Defendants with a copy of the Summons and
Complaint within the time prescribed by Rule 4(m). Therefore, this case is DISMISSED without
prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
IT IS SO ORDERED.

February 7, 2017
Florence, South Carolina

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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