Boyd v. First National Collection Bureau
Filing
4
MEMORANDUM DECISION granting 2 Motion for Extension of Time for Service of Process for 14 days following entry of this order. Signed by Judge Ted Stewart on 06/28/2011. (tls)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
JASON BOYD,
Plaintiff,
MEMORANDUM DECISION AND
ORDER GRANTING MOTION TO
EXTEND TIME FOR SERVICE OF
PROCESS
vs.
FIRST NATIONAL COLLECTION
BUREAU, INC., and Does 1 through V,
Case No. 2:10-CV-848 TS
Defendants.
Plaintiff moves under Fed.R.Civ. P. 4(m), moves for an order extending the time
within which Plaintiff may serve the complaint filed in this action to an additional ten (10)
days from the date of an order extending time. Plaintiff’s counsel represents that this is
only one of several cases in two courts in which he acts as counsel for Plaintiff. He
represents that he “conflated” service of the complaint in this case with service in a related
case and, therefore, mistakenly thought it had been timely made.
He argues that
extending the time would not prejudice defendants but would prejudice his client because
the statute of limitation has now run.
1
Fed.R.Civ.P. 4 (m) provides:
If a defendant is not served within 120 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.1 . . .
Here, the Complaint was filed on August 24, 2010 and the 120 days expired on
December 22, 2010. Plaintiff moved for an extension on February 7, 2010. According to
Plaintiff’s counsel, the Fair Debt Collection Act claim’s statute of limitation expired on
August 28, 2010. However, he has another claim, under the Utah Consumer Sales
Practices Act that could go forward. According to the Complaint, the claims arise from the
same facts.
Plaintiff concedes that he does not meet the good cause standard for relief under
Rule 4(m). However, he contends that under Tenth Circuit case law in Espinoza v. United
States,2 a permissive extension of the time limited under Rule 4(m) extension may be
granted if the applicable statute of limitations bars re-filing of the action.
Plaintiff misstates the ruling in Espinoz by declaring that in the case the court “ruled
that extension may be granted if the applicable statute of limitations bars re-filing of the
action.”3 In actuality Espinoza ruled as follows: “[i]f the plaintiff fails to show good cause,
the district court must still consider whether a permissive extension of time may be
1
Fed.R.Civ.P. 4(m).
2
52 F.3d 838 (10th Cir.1995).
3
Docket No. 3 (emphasis added).
2
warranted.”4 Indeed, whether the applicable statute of limitations would bar a re-filed
action is merely suggested in dicta as a factor to be considered by district courts in
determining if a permissive extension of time should be granted.5 However, Espinoza also
noted that the current Rule 4(m) broadened the courts’ discretion to allow permissive
expansion even where good cause is not shown.6
Although it is a close call in this case, the Court finds that a permissive extension
should be granted. Plaintiff moved for an extension a little over a month after the time had
run due to his counsel’s error in confusing two apparently similar cases. There does not
appear to be any prejudice to Defendant because the claim under the Utah Consumer
Sales Practices Act claim could be refiled. It is therefore
ORDERED that Plaintiff’s Motion to Extend Time for Service of Process (Docket No.
2) is GRANTED and the time is extended to 14 days following entry of this order.
DATED June 28, 2011.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
4
Espinoza, 52 F.3d at 841.
5
Id. at 842; see also Fed.R.Civ.P. 4(m) advisory committee notes (suggesting
additional factors such as if the defendant is evading service or conceals a defect in
attempted service).
6
Id. at 840-41.
3
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