Seventh Circuit Holds Excusable Neglect Analysis to be Inapplicable To Extensions of Time for Service of Process

BNA’s United States Law Week reported in Vol. 75, No. 23 (Dec. 19, 2006) on the case United States v. McLaughlin, --- F.3d ----, 2006 WL 3530589 (7th Cir. Dec. 8, 2006). Here is an excerpt from the case:

Rule 4(m) states that if the defendant isn't served within 120 days, the district court "shall dismiss the action without prejudice . . . or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period." In other words, if good cause for the delay is shown, the court must extend the time for service, while if good cause is not shown, the court has a choice between dismissing the suit and giving the plaintiff more time ("direct that service be effected within a specified time"). Henderson v. United States, 517 U.S. 654, 662-63, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996); Coleman v. Milwaukee Board of School Directors, 290 F.3d 932, 934 (7th Cir.2002). Thus the plaintiff who fails to demonstrate good cause for his delay throws himself on the mercy of the district court.

The rule specifies no criteria for the exercise of mercy. Some courts think that when as in this case an extension is sought after the 120-day deadline has passed, the plaintiff must show "excusable neglect," as that is the standard laid down by Rule 6(b)(2) for motions "made after the expiration of the specified period" for making the motion. Turner v. City of Taylor, 412 F.3d 629, 650 (6th Cir.2005); McGuire v. Turnbo, 137 F.3d 321, 324 (5th Cir.1998). We disagree. Rule 4(m) authorizes the district court, in a case in which the 120 days have elapsed, to "direct that service be effected within a specified time"; only if the plaintiff failed to meet the new deadline and filed a motion for an extension of time would Rule 6(b)(2) come into play. E.g., Troxell v. Fedders of North America, Inc., 160 F.3d 381, 383 (7th Cir.1998); Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1132 (11th Cir.2005); United States v. 2,164 Watches, More or Less, Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 767, 772 (9th Cir.2004); Committee Note to 1993 Amendments, Rule 4(m). Rule 6(b)(2) is less generous to dawdlers than Rule 4(m), not only in requiring the plaintiff to show excusable neglect if his motion for an extension is itself untimely, but also in not requiring the judge to grant the motion even if good cause is shown. The difference in standards may be accidental, or may reflect the fact that ignoring litigation deadlines delays the finality of litigation, see Committee Note to 1946 Amendment of Rule 6, Subdivision (b), whereas missing service deadlines merely postpones the commencement of litigation. Whatever the explanation, the difference is plain enough.

Conceivably (no stronger word is possible), it could make a difference in this case whether, as we do not believe, a finding of excusable neglect is a precondition to granting an untimely motion for an extension of time within which to serve the complaint. Neglect is excusable (though not justifiable-- "neglect" implies lack of justification) if there is a reason, which needn't be a compelling reason, to overlook it. Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 394-95, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); United States v. Guy, 140 F.3d 735 (7th Cir.1998). A common reason is that the neglect didn't harm anyone, United States v. Coney, 407 F.3d 871, 875 (7th Cir.2005), but it will not suffice if no excuse at all is offered or if the excuse is so threadbare as to make the neglect inexplicable. Marquez v. Mineta, 424 F.3d 539, 541-42 (7th Cir.2005); United States v. Guy, supra, 140 F.3d at 736; Prizevoits v. Indiana Bell Tel. Co., 76 F.3d 132, 134 (7th Cir.1996).

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