Ninth Circuit Discusses Discretion Bestowed on District Court Under FRCP 4(m); Reverses, Finding Abuse of Discretion

Per Efaw v. Williams, --- F.3d ----, 2007 WL 92647 (9th Cir. Jan. 16, 2007):

Plaintiff Robert Efaw claims that he was beaten severely by two guards while imprisoned at a Navajo County jail in Arizona. He filed suit against Defendant Officer Teresa Williams, one of the two guards involved in the incident, and various institutional and individual defendants. Plaintiff failed to serve Defendant with the complaint until seven years after it was filed. Defendant moved to be dismissed as a defendant pursuant to Federal Rule of Civil Procedure 4(m). The district court denied the motion and granted Plaintiff additional time to effect service of process. A jury trial followed, resulting in a judgment for Plaintiff. Defendant appeals. We vacate the judgment and remand with instructions to dismiss the action against Williams.

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Rule 4(m) provides in part:

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 if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

Fed.R.Civ.P. 4(m). Plaintiff did not serve Defendant within 120 days of filing his complaint. Rather, Defendant was not served until more than seven years after Plaintiff filed his amended complaint.

Rule 4(m), as amended in 1993, requires a district court to grant an extension of time when the plaintiff shows good cause for the delay. Mann, 324 F.3d at 1090 n. 2. Additionally, the rule permits the district court to grant an extension even in the absence of good cause. Id. Here, Plaintiff does not argue that he showed "good cause," nor did the district court find that he established good cause. Rather, Plaintiff contends that the district court acted within the scope of its Rule 4(m) discretionary power when it extended the time to serve Defendant. The question presented, then, is how much discretion Rule 4(m) bestows on the district court.

District courts have broad discretion to extend time for service under Rule 4(m). In Henderson v. United States, 517 U.S. 654, 661, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996), the Supreme Court stated that Rule 4's 120-day time period for service "operates not as an outer limit subject to reduction, but as an irreducible allowance." This court in Mann, 324 F.3d at 1090-91, held that Rule 4(m) gave the district court discretion to extend time of service. "On its face, Rule 4(m) does not tie the hands of the district court after the 120-day period has expired. Rather, Rule 4(m) explicitly permits a district court to grant an extension of time to serve the complaint after that 120-day period." Id. at 1090. However, no court has ruled that the discretion is limitless. In making extension decisions under Rule 4(m) a district court may consider factors "like a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service." Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir.1998). Here, the district court provided no indication that it had considered those factors in reaching its decision. . . .

The facts of this case weigh strongly against the district court's ruling. First, the length of the delay was extraordinary. Plaintiff offered no reasonable explanation for his seven-year failure to serve Defendant. . . . Second, there is no evidence in the record that Defendant knew about the action notwithstanding Plaintiff's failure to effect proper service. Nor did the district court find that Defendant knew that Plaintiff had filed the complaint. Finally, the delay prejudiced Defendant. Under these circumstances, the district court abused its discretion in denying Defendant's motion for dismissal based on Plaintiff's failure to comply with Rule 4's service requirements.