Aliff v. West Virginia Regional Jail and Correctional Facility Authority et al

Filing 30

MEMORANDUM OPINION AND ORDER denying Plaintiff's 21 MOTION to Extend Time Limit for Service. Signed by Judge Thomas E. Johnston on 1/20/2016. (cc: counsel of record; any unrepresented party) (tmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

KENNETH ALIFF,
Plaintiff,
v.

CIVIL ACTION NO. 2:15-cv-13513

WEST VIRGINIA REGIONAL JAIL AND
CORRECTIONAL FACILITY AUTHORITY, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s Motion to Extend Time Limit for Service (“the
Motion”). (ECF No. 21.) For the reasons discussed herein, that Motion is DENIED.
The Plaintiff filed this action in the Circuit Court of Kanawha County, West Virginia, on
August 21, 2015. On September 28, 2015, Defendants filed a notice of removal with this Court.
(ECF No. 1.) Plaintiff’s Motion was filed on December 22, 2015 and seeks an extension of time
in which to serve Defendant Daniel Simons, a correctional officer at the West Virginia Regional
Jail and Correctional Facility Authority. The Motion asserts that “Plaintiff has inadvertently
failed to obtain service on Defendant Simons within 120 days of filing his action” and concedes
that Plaintiff cannot demonstrate good cause justifying the failure of service. (ECF No. 21, ¶¶ 1–
2.)

1

Federal Rule of Civil Procedure 4(m) provides an outer limit for service upon defendants
in federal proceedings. As relevant here, that rule states that:1
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.
Fed. R. Civ. P. 4(m). In addition, 28 U.S.C. § 1448 provides, in pertinent part, that:
In all cases removed from any State court to any district court of the United States
in which any one or more of the defendants has not been served with process or in
which the service has not been perfected prior to removal, or in which process
served proves to be defective, such process or service may be completed or new
process issued in the same manner as in cases originally filed in such district court.
Taken together, these two provisions of federal law combine to give a plaintiff “a 120 day
period following filing of a notice of removal in which service may be completed or started anew.”
Lawrence v. Henson, 197 F. Supp. 2d 533, 538 (W.D. Va. 2002). In a removed case, the notice
of removal marks a clear delineation between state and federal jurisdiction. Id. at 539. Although
state law governs the sufficiency of service of process prior to removal, service after removal is
governed by federal law alone. See Eccles v. Nat’l Semiconductor Corp., 10 F. Supp. 2d 514, 519
(D. Md. 1998) (noting that “state law governing service of process (and all other issues) applies
before removal, and that federal law applies after removal”). Accordingly, with respect to a
defendant in a removed case who was not served before removal, “Rule 4(m)’s 120–day period
for service begins to run on the date of removal.” Id. at 519 (citing Alber v. Illinois Dep’t of
Mental Health & Developmental Disabilities, 786 F. Supp. 1340, 1376 (N.D. Ill. 1992) and 14A

1

The Rule has since been amended to reduce the relevant time period to 90 days. Because that amendment took
effect on December 1, 2015, the Court applies the 120-day limit in effect at the time the instant action was removed
to federal court.

2

Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1137
at 83 & n.1.1 (Supp. 1998)); see also Randolph v. Hendry, 50 F. Supp. 2d 572, 580 (“Ordinarily,
Rule 4(m) would require the plaintiff to effect service within 120 days of the filing of the
complaint, but in the context of removal, the federal court does not obtain an interest in the
action—and cannot therefore dictate the terms of service—until the Notice of Removal is filed.”
(citing Alber, 786 F. Supp. at 1376)).
Thus, the appropriate time period for effecting service on Defendant Simons, who was not
served in state proceedings prior to removal, is 120 days from September 28, 2015, the date on
which a notice of removal was filed in this action, or January 26, 2016. Accordingly, at the time
Plaintiff filed the Motion, he had more than a month of time available to effectuate service on
Defendant Simons. More importantly, Plaintiff still has six days remaining from the entry date
of this Order to achieve such service. Given Plaintiff’s representation that he has knowledge of
the identity of Defendant Simons’ counsel, (ECF No. 21 ¶ 1), it does not appear that Plaintiff will
have difficulty effectuating service before the Rule 4(m) time limit expires. Accordingly,
Plaintiff’s Motion to extend the applicable time limit for service is DENIED.2
IT IS SO ORDERED.

Plaintiff’s argument that Rule 4(m) provides this Court with “discretion” to extend the time for service
notwithstanding his inability to show good cause for his failure of service appears to be foreclosed by the decisions of
the Fourth Circuit. See Mendez v. Elliott, 45 F.3d 75, 78 (4th Cir. 1995) (“Rule 4(m) requires that if the complaint is
not served within 120 days after it is filed, the complaint must be dismissed absent a showing of good cause.”); Chen
v. Mayor & City Council of Baltimore, 546 F. App’x 187, 188 (4th Cir. 2013) (per curiam) (affirming a decision of
the district court, “for the reasons stated by the district court,” in which the lower court had acknowledged several
arguments against the continuing validity of Mendez but ultimately affirmed the authority of that decision and held to
the good cause requirement it imposed for extensions of the Rule 4(m) time period). Accordingly, even if Plaintiff did
not still have time remaining to serve Defendant Simons, the Court would not likely grant his motion to extend the
time period for service beyond that mandated by Rule 4(m) absent a showing of good cause, which Plaintiff concedes
he is incapable of demonstrating.
2

3

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

4

January 20, 2016