Adel Saeed v. Michael L. Dale, et al
Plaintiff Adel Saeeds Motion for Extension of Time to Serve the Summons and Complaint (docket no. 22) is GRANTED. Saeed is given until May 30, 2016, to serve Dale as discussed herein or to show cause why additional time is needed.Signed by Judge Xavier Rodriguez. (mr)
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
RUNNING COOL EXPRESS, LLC, and
MICHAEL L. DALE,
Civil Action No. SA-15-CV-861-XR
On this date, the Court considered Plaintiff’s Motion to Extend Time to Serve the
Summons and Complaint (docket no. 22). After careful consideration, the Court will grant the
This case was commenced by the filing of Plaintiff Adel Saeed’s Original Petition in
the 45th Judicial District Court in Bexar County, Texas, on August 31, 2015. Docket no. 1-2
at 3. On October 5, 2015, Defendant Running Cool Express, LLC (“Running Cool Express”)
removed the case to this Court. Docket no. 1. Saeed filed a Motion to Extend Time to Serve
the Summons and Complaint as to Defendant Michael L. Dale on March 21, 2016. Docket no.
22. Saeed requests a 90-day extension to serve Dale. Id. at 4.
Under Rule 4(m), when a plaintiff fails to serve a defendant within the 90-day period,
the Court has two choices: either “dismiss the action without prejudice . . . or direct that
service be effected within a specified time.” 1 Thompson v. Brown, 91 F.3d 20, 21 (5th Cir.
1996). “The next portion of the rule qualifies the district court’s choices, making an extension
of time mandatory when the plaintiff shows good cause.” Id.
If good cause is present, the
district court must extend time for service. Thompson, 91 F.3d at 21. If good cause does not
exist, the court may, in its discretion, decide whether to dismiss the case without prejudice or
extend time for service. Id. Good cause normally requires some evidence of “good faith on
the part of the party seeking an enlargement of time and some reasonable basis for noncompliance within the time specified.” Lambert v. United States, 44 F.3d 296, 299 (5th Cir.
Even when good cause is lacking, the Court must decide whether to exercise its
discretion to extend the time for service. The 1993 Advisory Committee Note to Rule 4(m)
states that the district court may consider whether the “applicable statute of limitations would
bar the refiled action.” When limitations could serve to bar a re-filed action and render the
dismissal in effect “with prejudice,” this Court’s discretion is more limited. Millan v. USAA
General Indem. Co., 546 F.3d 321 (5th Cir. 2008). A district court’s “dismissal with prejudice
is warranted only where ‘a clear record of delay or contumacious conduct by the plaintiff’
exists and a ‘lesser sanction would not better serve the interests of justice.’” Id. at 326. In
addition, to justify dismissal with prejudice, there must generally be at least one of three
aggravating factors: “(1) delay caused by [the] plaintiff himself and not his attorney; (2) actual
prejudice to the defendant; or (3) delay caused by intentional conduct.” Id.
This case commenced prior to December 1, 2015, the date on which the amendments to the Federal Rules
became effective. Thus, as a courtesy, the Court will apply the 120-day deadline in this case as opposed to the
new 90-day deadline to effectuate service.
The first inquiry is whether Saeed has established good cause for his failure to timely
serve Dale. In his motion and attached exhibits, Saeed describes his previous efforts to serve
Dale. On September 13, 2015, Tim Arnold, a private process server, attempted to serve Dale
at 4058 9th St., Wayland, Michigan, 49348. Docket no. 22-1. Arnold was told by residents of
the property that Dale no longer lived there and did not leave a forwarding address. Id.
After this attempt, Saeed made no further attempts to serve Dale until February 2016.
See docket no. 22-1 at 42. Saeed claims that he did not attempt to serve Dale between
September and February because he was focusing on complying with the Court’s other orders.
Docket no. 22 at 2. In February, Erich Hein, a private process server, attempted to serve Dale
on three occasions at 11617 Winchester Dr., Shelbyville, Michigan, 49344—an address he
obtained from the Michigan Department of State. Docket no. 22-1 at 42. On February 17,
2016, Hein attempted service but no one was home. Id. He left a card on the front door. Id.
Two days later, he returned. Id. Again no one answered, but his card had been removed from
the door. Id. Hein attempted service again on February 20, 2016, but was unsuccessful. Id.
The Court finds that Saeed has failed to demonstrate good cause for the failure to
timely effect service. This case was removed on October 15, 2015. Docket no. 1. The
deadline to serve Dale was thus February 2, 2016. 2 According to Saeed’s own motion and the
reports from the process servers, no attempt was made to serve Dale or surmise his correct
address during the entire 120-day period. It was not until the Court’s February 4, 2016, status
conference, where the status of service was discussed, that Saeed began to take action.
In removed cases, the Rule 4(m) time period starts to run upon removal, not the date the state court petition was
filed. Wallace v. Microsoft Corp., 596 F.3d 703, 706 (10th Cir. 2010); 4B Wright, Miller, Kane & Marcus,
Federal Practice and Procedure: Civil § 1137 (3d ed.).
Given that the Court has found no good cause for the failure to timely serve Dale, the
Court must next decide whether to exercise its discretion to extend the time for service despite
such failure. The 1993 Advisory Committee Note to Rule 4(m) states that the district court
may consider whether the “applicable statute of limitations would bar the refiled action, or if
the defendant is evading service or conceals a defect in attempted service.” Saeed filed suit on
August 31, 2015, alleging a claim for negligence related to an automobile accident that took
place on September 11, 2013. Docket no. 1-2 at 3. The statute of limitations for negligence
claims in Texas is two years. Baptist Memorial Hosp. Sys. v. Arredondo, 922 S.W.2d 120,
121 (Tex. 1996). Because limitations could serve to bar a re-filed action, this factor weighs in
favor of extending the time for service. See Millan v. USAA General Indem. Co., 546 F.3d
321, 326 (5th Cir. 2008). Moreover, “in exercising Rule 4(m) discretion, courts within the
Fifth Circuit have ventured outside those suggestions found in the Advisory Committee Note
and extended time for service of process where it is judicially efficient to do so, and/or where
the defendant is not prejudiced as a result of a plaintiff's failure to effect service.” Vessel
Leasing, LLC v. Barge ACL-01537 in rem, Civ. Ac. No. 1:05-CV-440, 2007 WL 3343046
(S.D. Miss. Nov. 7, 2007).
The Court concludes that an extension of time is appropriate, given that Saeed has
made several good faith attempts at service, has moved for an extension, the delay is not
excessive, and limitations may bar a refiled action. Accordingly, the Court grants the motion
to extend time to complete service, but will give Saeed only sixty days rather than the ninety
Plaintiff Adel Saeed’s Motion for Extension of Time to Serve the Summons and
Complaint (docket no. 22) is GRANTED. Saeed is given until May 30, 2016, to serve Dale as
discussed herein or to show cause why additional time is needed.
It is so ORDERED.
SIGNED this 29th day of March, 2016.
UNITED STATES DISTRICT JUDGE
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