Axis Dynamics et al v. Knox County Tennessee et al

Filing 66

MEMORANDUM AND ORDER granting in part and denying in part 62 First MOTION for Extension of Time to File Return of Summons Brassler filed by Wendy Rose, Axis Dynamics. The Court therefore ORDERS Plaintiffs to serve Defendant Brassler on or before April 2, 2025. Signed by Magistrate Judge Jill E McCook on 3/12/2025. (MKM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
AXIS DYNAMICS, INC., and
WENDY ROSE,
Plaintiffs,
v.
KNOX COUNTY, TENNESSEE, et al.,
Defendants.

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No. 3:24-CV-329-CEA-JEM

MEMORANDUM AND ORDER
This case is before the Court pursuant to 28 U.S.C. § 636, the Rules of this Court, and
Standing Order 13-02.
Now before the Court is Plaintiffs’ Motion for Additional Time to Serve Defendant Reece
Brassler [Doc. 62]. For the reasons set forth below, the Court GRANTS IN PART AND DENIES
IN PART the motion [Doc. 62].
I.

BACKGROUND
On December 4, 2024, Plaintiffs filed their Amended Complaint that names Reece Brassler

as a defendant [Doc. 29]. Under Rule 4(m) of the Federal Rules of Civil Procedure, Plaintiffs had
until March 4, 2025, to serve Defendant Brassler. On March 6, 2025, Plaintiffs filed their motion
seeking an extension of the deadline [Doc. 62].
Plaintiffs state that “[o]n January 17, 2025, [they] dispatched the [A]mended [C]omplaint
to [Defendant] Brassler through United States Certified Mail Return Receipt to his place of
business[,] Kennerly Montgomery and Finley” [Id. ¶ 1 (citing Doc. 62-1)]. “For reasons
unknown,” Plaintiffs assert, “the mailing was sent to Kentucky” [Id. ¶ 2]. Plaintiffs state that this

“caused a significant delay in returning it to [their] counsel, who received it . . . on March 4, 2025”
[Id.]. They state that they have “made a good faith effort to serve [Defendant] Brassler” [Id. ¶ 3].
They seek an additional ninety days to serve him [Id. at 2].
II.

ANALYSIS
Plaintiffs’ request is governed under Rule 4(m), which provides as follows:
(m) Time Limit for Service. If a defendant is not served within 90
days after the complaint is filed, the court--on motion or on its own
after notice to the plaintiff--must dismiss the action without
prejudice against that defendant or order that service be made within
a specified time. But if the plaintiff shows good cause for the failure,
the court must extend the time for service for an appropriate period.
This subdivision (m) does not apply to service in a foreign country
under Rule 4(f), 4(h)(2), or 4(j)(1).

Fed. R. Civ. P. 4(m). The Sixth Circuit has explained that Rule 4(m) requires a two-step analysis
when the plaintiff does not achieve service within ninety days. Stewart v. TVA, 238 F.3d 424,
2000 WL 1785749, at *1 (6th Cir. 2000) (table opinion). The Court must first determine whether
plaintiff has shown good cause for the failure to serve. Id. If plaintiff has shown good cause, then
the Court must grant the extension. Id.; see also Fed. R. Civ. P. 4(m). Whether plaintiff has
established good cause is within “the sound discretion of the district court.” Williams v. Smith,
No. 98-1700, 1999 WL 777654, at *1 (6th Cir. Sept. 17, 1999). If the plaintiff has not shown good
cause, then the Court may either dismiss the action without prejudice or order that service be
completed. Id.
The Court finds that Plaintiffs have established good cause for an extension to serve
Defendant Brassler. Plaintiffs took a reasonable and diligent effort to serve him, and there was a
“delay in the return of the certified mail” [Doc. 62 ¶ 3]. See Searcy v. GUUAS, LLC,
No. 2:19-CV-3124, 2020 WL 1694987, at *3 (S.D. Ohio Apr. 6, 2020) (concluding that the
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plaintiff established good cause to serve the defendant because the plaintiff had been diligent in
attempting to locate and serve the defendant). Accordingly, given that Plaintiffs have established
good cause, the Court “must extend the time for service for an appropriate period.”
Fed. R. Civ. P. 4(m).
But Plaintiffs filed their motion after the March 4 deadline to serve. Pursuant to
Rule 6(b)(1)(B), if “a party requests an extension of a deadline after that deadline has passed, the
Court can grant an extension only on a motion and upon a finding of good cause and excusable
neglect.” Boyd v. City of Warren, No. 16-12741, 2019 WL 1423244, at *2 (E.D. Mich.
Mar. 29, 2019) (citation omitted), objections overruled sub nom., Boyd v. McCabe,
No. 16-CV-12741, 2019 WL 3852582 (E.D. Mich. Aug. 16, 2019). There are four factors to
determine excusable neglect: “(1) the danger of prejudice to defendant[]; (2) the length of the delay
and its impact on judicial proceedings; (3) the reason for the delay, including whether it was within
plaintiff’s reasonable control; and (4) whether plaintiff acted in good faith.” Sydney v. Columbia
Sussex Corp., No. 3:13-CV-312, 2014 WL 7156953, at *4 n.1 (E.D. Tenn. Dec. 15, 2014) (citation
omitted). As noted, Plaintiffs attempted to serve Defendant Brassler by certified mail on January
17, 2025 [Doc. 62 ¶ 1]. According to Plaintiffs’ counsel, he did not receive the returned mail receipt
unitl March 4, 2025 [Id. ¶ 2]. Further, Plaintiffs recently added Defendant Brassler [see Doc. 29],
there is no evidence that Defendant Brassler would be prejudiced by the delay, and there is no
indication that Plaintiffs acted in bad faith. The Court therefore finds an extension is warranted.
Plaintiffs seek an additional ninety days to serve Defendant Brassler, but they do not
provide an explanation on why that much time is needed. This is not a situation where Plaintiffs
do not know Defendant Brassler’s whereabouts. Cf. Searcy, 2020 WL 1694987, at *3 (granting

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the plaintiff an additional ninety days to serve the defendant because she could not locate it). The
Court therefore ORDERS Plaintiffs to serve Defendant Brassler on or before April 2, 2025.
III.

CONCLUSION
For the reasons stated above, the Court GRANTS IN PART AND DENIES IN PART

Plaintiffs’ Motion for Additional Time to Serve Defendant Reece Brassler [Doc. 62].
IT IS SO ORDERED.
ENTER:
____________________________
Jill E. McCook
United States Magistrate Judge

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