E.D. Va. Finds Good Cause to Extend 120-day Period of FRCP 4(m)

Per U.S. v. Sea Bay Development Corp., Slip Copy, 2007 WL 1378544 (E.D.Va. May 08, 2007):

Williams' Farms' final argument is that Plaintiff's complaint should be dismissed because service of the summons and complaint was not made on it until after the 120 days specified in Federal Rule of Civil Procedure 4(m). Williams' Farms was served ten days after the appropriate time period expired. Plaintiff counters that it made reasonable and diligent efforts to effect service, Williams' Farms was uncooperative and evasive, and that there are mitigating circumstances that support an extension of the 120-day period.

The instant complaint was filed on November 2, 2006. The 120-day time period expired on March 2, 2007. Plaintiff has supplied the declaration of a co-owner of the process server it used to serve Williams' Farms. (United States' Opp'n to the Mot. to Dismiss Filed by Def. Frank T. Williams' Farms of N.C., Inc., Ex. 3). Plaintiff directed that service occur no later than December 28, 2006. ( Id. at ¶ 3). The process server had difficulty in contacting the president of Williams' Farms, but did have at least two telephone conversations with him. ( Id. at ¶ 4). In January 2007, Plaintiff informed the process server that settlement was likely. ( Id.). The process server experienced difficulty in arranging a time and place for service. ( Id. at ¶ 5). Soon afterwards, Plaintiff requested the process server to serve Williams' Farms' designated agent, an attorney in Virginia Beach, Virginia. ( Id.). On February 28, 2007, an employee with the process server attempted to serve the designated agent, but the agent refused process on the grounds that the summons was not specifically address to him. ( Id.). Plaintiff provided a new summons specifically addressed to the designated agent, and the agent was served on March 12, 2007, ten days after the 120-day period. ( Id.).

The standards for proper service as set forth in Federal Rule of Civil Procedure 4 are incorporated into Rule 12(b)(5). 5B Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 1353 (3d ed.2004); see Lilly v. Winter, No. 1:05cv879, 2006 WL 543977, at *1 (E.D.Va. March 3, 2006) (incorporating the Rule 4(m) time limit into a Rule 12(b)(5) analysis). Rule 4(m) states that, “if the plaintiff shows good cause for the failure [to effect service within 120 days after the filing of the complaint], the court shall extend the time for service for an appropriate period.” Fed.R.Civ.P. 4(m). Good cause requires “reasonable and diligent efforts to effect service” within the 120-day limit. Quann v. Whitegate-Edgewater, 112 F.R.D. 649, 661 (D.Md.1986); see also Hammad v. Tate Access Floors, Inc., 31 F.Supp.2d 524, 528 (D.Md.1999). A defendant's evasion of service can constitute good cause. T & S Rentals v. United States, 164 F.R.D. 422, 425 (N.D.W.Va.1996). Attorney inadvertence, however, weighs against a finding of good cause. Id.

The Court finds that good cause for an extension of the time allowed to serve the summons and complaint exists in this case. Plaintiff did delay its attempts to contact Williams' Farms regarding service for over a month after the complaint was filed; however, when Plaintiff began to attempt to serve Williams' Farms, Williams' Farms was not cooperative in Plaintiff's process server's attempts to arrange a time and place for service. Furthermore, when Plaintiff directed that service be made on Williams' Farms' registered agent within the 120-day limit, the registered agent refused service because the summons did not list his name. Rule 4(e)(2) provides that unless otherwise provided, service may be effected “by delivering a copy of the summons and of the complaint ... or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.” Rule 4(a), describing the form of the summons, does not require a registered agent's name to appear. Plaintiff properly attempted to serve Williams' Farms' registered agent within the 120-day period, and that agent's improper refusal of service cannot be attributed to Plaintiff.