Lamb v. Commissioner of Social Security

Filing 20

MEMORANDUM OPINION AND ORDER DENYING MOTION TO DISMISS ECF NO. 3 . The Court lifts the stay and will enter a second order and notice regarding discovery and scheduling. Signed by District Judge Thomas S. Kleeh on 5/14/20. (mh)

Case 1:18-cv-00120-TSK Document 20 Filed 05/14/20 Page 1 of 10 PageID #: 89

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BRENDA J. LAMB,
Plaintiff,
v.

Civil Action No. 1:18cv120
(Judge Kleeh)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER DENYING
MOTION TO DISMISS [ECF NO. 3]
Pending before the Court is a Motion to Dismiss for failure
to timely serve under Rule 4(m) of the Federal Rules of Civil
Procedure.

For

the

reasons

discussed

herein,

the

motion

is

denied.
I.
On

May

21,

(“Plaintiff”),
Defendant,

PROCEDURAL & FACTUAL HISTORY
2018,

filed

Nancy

A.

a

the

Plaintiff,

Complaint
Berryhill

in

this

Brenda
action

(“Defendant”),

J.

Lamb

against
the

the

Acting

Commissioner of the Social Security Administration. Plaintiff
improperly filed a Request for Waiver of Service the next day. 1
On

October

9,

2018,

Defendant

1

filed

the

pending

Motion

to

Under Rule 4(d), a request for waiver of service is
inapplicable in a suit against the United States or one of its
agencies.
1

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LAMB V. COMMISSIONER OF SOCIAL SECURITY

1:18-CV-120

MEMORANDUM OPINION AND ORDER DENYING
MOTION TO DISMISS [ECF NO. 3]
Dismiss, requesting dismissal with prejudice under Rule 41 for
failure to comply with 4(m) or dismissal without prejudice for
failure to timely serve under 4(m).
Service was not completed upon the Government until October
22, 2018 (well beyond the 90-day limit). On the same day, United
States District Judge Keeley entered a First Order and Notice
Regarding Discovery
moved

to

stay

the

and Scheduling (“First Order”). Defendant
deadlines

in

the

First

Order

pending

resolution of the Motion to Dismiss. The case was transferred to
United States District Judge Thomas S. Kleeh,
granted

the

motion

to

stay.

The

Motion

to

and the Court

Dismiss

is

fully

briefed and ripe for consideration.
II.

DISCUSSION

A. Amendments to Rule 4(m)
Until 1993, under Rule 4(j), 2 the Court was required to
dismiss a complaint without prejudice if service was not made
within 120 days of the complaint’s filing:
If the service of the summons and complaint
is not made upon a defendant within 120 days
after the filing of the complaint and the
party on whose behalf such service was
required cannot show good cause why such
service was not made within that period, the
action shall be dismissed as to that
defendant without prejudice upon the court's
2

Until 1993, Rule 4(m) was Rule 4(j).
2

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LAMB V. COMMISSIONER OF SOCIAL SECURITY

1:18-CV-120

MEMORANDUM OPINION AND ORDER DENYING
MOTION TO DISMISS [ECF NO. 3]
own initiative with notice to such party or
upon motion.
In 1993, the Rule was amended and became 4(m). Specific
language was added to allow the Court to “direct that service be
effected within a specified time” if service was untimely:
If service of the summons and complaint is
not made upon a defendant within 120 days
after the filing of the complaint, the
court, upon motion or on its own initiative
after notice to the plaintiff, shall dismiss
the action without prejudice as to that
defendant or direct that service be effected
within a specified time; provided that the
plaintiff shows good cause for the failure,
the court shall extend the time for service
for an appropriate period.
The advisory committee note to the 1993 amendment explains that
an extension must be granted if good cause exists. It further
states

that

plaintiff

Rule

of

4(m)

the

“authorizes

consequences

of

the

court

to

an

application

relieve
of

a

this

subdivision even if there is no good cause shown.” The notes
provide

examples

of

when

this

might

take

place:

“if

the

applicable statute of limitations would bar the refiled action,
or if the defendant is evading service or conceals a defect in
attempted service.”
In

2007,

Rule

4(m)

was

amended

again.

The

advisory

committee notes for the 2007 amendment provide that the changes
3

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LAMB V. COMMISSIONER OF SOCIAL SECURITY

1:18-CV-120

MEMORANDUM OPINION AND ORDER DENYING
MOTION TO DISMISS [ECF NO. 3]
“are intended to be stylistic only” and are “part of the general
restyling

of

the

Civil

Rules

to

make

them

more

easily

understood.”
Finally, in 2015, Rule 4(m) was amended to change the time
period for service from 120 days to 90 days. The current version
of Rule 4(m) states, in relevant part, as follows:
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.
B. Good Cause Under Rule 4(m)
Under 4(m), “if the
failure,

the

court

must

plaintiff shows
extend

the

time

good
for

cause for the
service

for

an

appropriate period.” In determining whether good cause exists,
the Court must consider whether the following took place:
(1) the delay in service was outside the
plaintiff’s control, (2) the defendant was
evasive, (3) the plaintiff acted diligently
or
made
reasonable
efforts,
(4)
the
plaintiff is pro se or in forma pauperis,
(5) the defendant will be prejudiced, or (6)
the plaintiff asked for an extension of time
under Rule 6(b)(1)(A).
Greenbrier Hotel Corp. v. ACE Am. Ins. Co. (CHUBB), No. 2:194

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LAMB V. COMMISSIONER OF SOCIAL SECURITY

1:18-CV-120

MEMORANDUM OPINION AND ORDER DENYING
MOTION TO DISMISS [ECF NO. 3]
cv-00118, 2019 WL 2353372, at *2 (citing Scott v. Md. State
Dep’t of Labor, 673 F. App’x 299, 306 (4th Cir. 2016)). The
plaintiff

bears

the

burden

of

establishing

that

good

cause

exists. Beasley v. Bojangles’ Rests., Inc., No. 1:17CV255, 2018
WL 4518693, at *1. It is “determined on a case-by-case basis
within the discretion of the district court.”

Scott, 673

F.

App’x at 306.
Here, good cause does not exist. First, Plaintiff’s counsel
does not offer any justification for the untimely service beyond
his admission that he made a mistake and should have re-read
Rule 4. He does not reference a personal or professional issue
that

affected

service.

There

does

not

appear

to

be

any

interference outside of his control. As Defendant points out,
“mere inadvertence” does not qualify as good cause. Plaintiff
has not established good cause for her failure to timely serve,
so the Court is not required to extend the time for service.
C. Extending Service in the Absence of Good Cause
In 1995, two years after the 1993 amendments to 4(m), the
Fourth Circuit decided Mendez v. Elliot, 45 F.3d 75 (4th Cir.
1995). In Mendez, service was accomplished 177 days after the
complaint was filed and 57 days after the deadline. Id. at 77.
The district court dismissed the action because the plaintiff
failed to demonstrate good cause. Id. at 78. The Fourth Circuit
5

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LAMB V. COMMISSIONER OF SOCIAL SECURITY

1:18-CV-120

MEMORANDUM OPINION AND ORDER DENYING
MOTION TO DISMISS [ECF NO. 3]
affirmed the district court, writing that “Rule 4(m) requires
that good cause be shown for obtaining an extension.” Id. at 80.
Despite

the

holding

in

Mendez,

the

following

year,

the

Supreme Court of the United States wrote in dicta that “in 1993
amendments to the Rules, courts have been accorded discretion to
enlarge

the

120-day

period

‘even

if

there

is

no

good

cause

shown.’” Henderson v. United States, 517 U.S. 654, 662 (1996).
Further, the Fourth Circuit has held in a number of unpublished
decisions that extensions may be granted without good cause.
See, e.g., Scruggs v. Spartanburg Reg’l Med. Ctr., 198 F.3d 237,
No. 98-2364, 1999 WL 957698, at *2 (4th Cir. 1999) (unpublished)
(refraining from formally adopting Henderson dicta but noting
that “the district court, in its discretion, could have extended
the

time

for

proper

service

of

process,

notwithstanding

its

apparent belief to the contrary”); Giacamo-Tano v. Levine, 199
F.3d 1327, No. 98-2060, 1999 WL 976481, at *1 (4th Cir. 1999)
(unpublished)
cause,

the

(“Even

district

if

a

plaintiff

court

may

in

does
its

not

establish

discretion

grant

good
an

extension for time of service.”).
The United States District Court for the Northern District
of West Virginia has recognized the same concept in multiple
decisions. In Bruce v. City of Wheeling, the defendants argued
that

the

complaint

must

be

dismissed
6

because

the

plaintiff

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LAMB V. COMMISSIONER OF SOCIAL SECURITY

1:18-CV-120

MEMORANDUM OPINION AND ORDER DENYING
MOTION TO DISMISS [ECF NO. 3]
failed to show good cause. No. 5:07CV76, 2008 WL 4763274, at *3
(N.D.W.

Va.

defendants

Oct.
were

29,

2008).

relying

on

Judge

case

Stamp

law

that

wrote
was

that
no

the

longer

applicable under the 1993 and 2007 amendments to 4(m): “[m]ost
courts have held that the [1993] amendment substantively changes
the rule’s content by eliminating the good cause requirement[.]”
Id.
While acknowledging that Mendez is a published opinion in
the Fourth Circuit, Judge Stamp noted that the relevant events
in Mendez occurred between April 1993 and October 1993, when the
amended 4(m) did not go into effect until December 1993. Id. at
*4. In light of the amendments to 4(m), Henderson, unpublished
post-Mendez decisions, and the weight of authority, Judge Stamp
found that 4(m) permits courts to enlarge the time for service
in the absence of a good-cause showing. Id. at *5. He found that
the

following

factors

should

be

considered

in

determining

whether to grant an extension to a plaintiff who has not shown
good cause: “whether a statute of limitations bar would preclude
the

plaintiff

from

re-filing,

whether

an

extension

will

prejudice the defendant, whether the defendant had actual notice
of the lawsuit, and whether the plaintiff eventually effected
service.” Id.
Judge Stamp reiterated this approach to Rule 4(m) in other
7

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LAMB V. COMMISSIONER OF SOCIAL SECURITY

1:18-CV-120

MEMORANDUM OPINION AND ORDER DENYING
MOTION TO DISMISS [ECF NO. 3]
cases.

See,

e.g.,

Hardy

v.

Astrue,

No.

5:09CV112,

2010

WL

1138338, at *4 (N.D.W. Va. Mar. 19, 2010) (granting an extension
in the absence of good cause after finding that “the plaintiff
did eventually effect service” and that there was “no evidence
to

suggest

that

[the

defendant]

was

prejudiced

by

this

extension”); Cox v. Babcock & Wilcox Constr. Co., 5:09CV84, 2009
WL

3764831,

at

*4

(N.D.W.

Va.

Nov.

9,

2009)

(granting

an

extension in the absence of good cause after finding that “the
plaintiff did eventually effect service, only one day after the
permitted time period prescribed” and that “the defendants have
offered

no

argument,

and

this

Court

finds

no

evidence

to

suggest, that they were prejudiced by this extension”).
Based on the text of the rule itself, the committee notes,
the

dicta

in

Henderson,

and

the

approach

taken

in

various

unpublished decisions, this Court finds that it has discretion
to extend time for service even when good cause is absent. 3
3

The Court recognizes that there is authority in the district,
in addition to Mendez, to the contrary. See, e.g., Martinez v.
United States, 578 F. App’x 192, 193 (4th Cir. 2014)
(unpublished) (“A plaintiff may escape dismissal for failure to
timely serve process only if she demonstrates ‘good cause’ for
the delay.”); Hager v. Graham, No. 5:05CV129, 2007 WL 1089088,
at *2 (N.D.W. Va. Mar. 30, 2007) (noting that the “trial court
does not have discretion to extend time absent showing of good
cause”); Carrigan v. Eli Lilly & Co., No. 5:05CV131, 2006 WL
1705909, at *2 (N.D.W. Va. 2006) (also noting that the “trial
court does not have discretion to extend time absent showing of
good cause”); T&S Rentals v. United States, 164 F.R.D. 422, 427
8

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LAMB V. COMMISSIONER OF SOCIAL SECURITY

1:18-CV-120

MEMORANDUM OPINION AND ORDER DENYING
MOTION TO DISMISS [ECF NO. 3]
According to the advisory committee notes and the test applied
by

Judge

Stamp

in

Bruce,

the

Court

should

consider

the

following: “whether a statute of limitations bar would preclude
the

plaintiff

from

re-filing,

whether

an

extension

will

prejudice the defendant, whether the defendant had actual notice
of the lawsuit, and whether the plaintiff eventually effected
service.” Bruce, 2008 WL 4763274, at *5.
Here, first, a statute of limitations bar would preclude
Plaintiff from re-filing because he needed to file his action
within 90 days of the adverse agency decision. See Resp., ECF
No. 8, at 2. Second, Defendant has not pointed to any evidence
that it would be prejudiced by an extension. Third, Defendant
had actual notice of the lawsuit by September 27, 2018. See id.
(noting that this was the date Agency counsel “learn[ed] for the
first

time . . . that

a

Complaint

had

been

filed

in

this

matter”). Fourth, Plaintiff did eventually complete service on
October 22, 2018, soon after the motion to dismiss was filed.
The Court finds that these factors weigh in favor of Plaintiff.

(N.D.W. Va. 1996) (dismissing because no good cause existed).
See also Marinkovic v. Schultz, No. CR-16-1461, 2017 WL 6422372,
at *4 (D. Md. Aug. 9, 2017) (recognizing disagreement in the
Fourth Circuit and ultimately following Mendez and dismissing
due to lack of good cause).
9

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LAMB V. COMMISSIONER OF SOCIAL SECURITY

1:18-CV-120

MEMORANDUM OPINION AND ORDER DENYING
MOTION TO DISMISS [ECF NO. 3]
III. CONCLUSION
For the reasons discussed above, the Motion to Dismiss [ECF
No. 3] is DENIED. The STAY is hereby LIFTED. The Court will
issue

a

Second

Order

and

Notice

Regarding

Discovery

and

Scheduling in the near future, and the case will proceed in
normal course.
It is so ORDERED.
The Clerk is directed to transmit copies of this Memorandum
Opinion and Order to counsel of record.
DATED: May 14, 2020
/s/ Thomas S. Kleeh
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE

10