United States Court of Appeals

For the Eighth Circuit

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No. 13-2605

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Andre Peer

lllllllllllllllllllll Plaintiff - Appellant

v.

Tom Vilsack, Secretary, United States Department of Agriculture

lllllllllllllllllllll Defendant - Appellee

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 Appeal from United States District Court 

for the Eastern District of Arkansas - Helena

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 Submitted: June 9, 2014

 Filed: June 25, 2014 

[Unpublished]

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Before BYE, COLLOTON, and KELLY, Circuit Judges.

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PER CURIAM.

Andre Peer filed suit against Tom Vilsack, in his capacity as Secretary of the

United States Department of Agriculture (USDA), alleging Vilsack had violated

Peer’s rights under 42 U.S.C. § 1985, 42 U.S.C. § 2000d, and the Equal Credit
Opportunity Act, 15 U.S.C. § 1691. The district court dismissed Peer’s complaint 1

for failure to complete service of process. We affirm.

I

Peer filed suit against Vilsack on May 24, 2012. Peer sought several

extensions between May 2012 and June 2013 to complete proper service upon

Vilsack, the U.S. Attorney for the Eastern District of Arkansas, and the U.S. Attorney

General. These extensions were sought because Peer was in settlement negotiations

with the USDA. The district court granted Peer’s extensions and told Peer to provide

proof of service in accordance with Rule 4(i) of the Federal Rules of Civil Procedure

by May 10, 2013. Peer failed to provide proof of service by this deadline. On June

18, 2013, the district court entered an order requiring Peer to file proof of service by

June 21, 2013, or Peer’s complaint would be dismissed without prejudice.

Three days after the deadline Vilsack filed a motion for extension of time to

file an answer. After that motion was filed the district court entered an order

dismissing Peer’s complaint, which denied Vilsack’s motion as moot. Later that day,

Peer filed proof ofservice on the U.S. Attorney and the U.S. Attorney General. After

filing proof of service, Peer moved to set aside the order dismissing the case and

requesting additional time to comply with the court’s order if the court found the

service was defective. The district court denied Peer’s motion stating Peer’s service

of the U.S. Attorney was still deficient. Peer now appeals the order dismissing the

case and the denial of the motion to set aside the order of dismissal.

The Honorable D.P. Marshall, Jr., United States DistrictJudge for the Eastern 1

District of Arkansas.

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II

A district court’s dismissal of an action for untimely service and its decision

to deny an extension of time to effect service of summons is reviewed for abuse of

discretion. Kurka v. Iowa Cnty., Iowa, 628 F.3d 953, 957 (8th Cir. 2010). The denial

of a motion to alter or amend a judgment is also reviewed for abuse of discretion. Id.

Under Rule 4(m) of the Federal Rules of Civil Procedure, the plaintiff must

demonstrate good cause for failure to serve within the prescribed 120-day period.

Colasante v. Wells Fargo Corp., 81 F. App’x 611, 612-13 (8th Cir. 2003). If good

cause is not shown, the district court may grant an extension if the plaintiff

demonstrates excusable neglect. Id. at 613.

The determination of good cause is entrusted to the sound discretion of the

district court. Id. Good cause islikely shown when the plaintiff’s failure to complete

service in a timely fashion is a result of the conduct of a third person (typically the

process server), the defendant has evaded service or engaged in misleading conduct,

the plaintiff has diligently tried to effect service or there are understandable

mitigating circumstances, or the plaintiff is proceeding pro se or in forma pauperis.

Kurka, 628 F.3d at 957. “A showing of good cause requires . . . some reasonable

basis for noncompliance with the rules.” Id.

Here, Peer has failed to show any of these circumstances were the reason he

failed to complete service in timely fashion. The district court allowed multiple

extensions for Peer to complete good service before it put a firm deadline on Peer to

prove that service had been completed. Peer’s failure to meet this deadline was

simply due to his own negligence. Thus, the district court did not abuse its discretion

in concluding Peer had failed to demonstrate good cause for his failure to complete

service.

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Since good cause was not shown, Peer must demonstrate that his failure to

make timely service was due to excusable neglect. See Colasante, 81 F. App’x at

615. Factors to consider when evaluating whether neglect is excusable include: the

possibility of prejudice to the defendant, the length of the delay and the potential

impact on judicial proceedings, the reason for the delay (whether the delaywas within

the party’s reasonable control), and whether the party acted in good faith. Kurka, 628

F.3d at 958. The reason for the delay is the key factor. Id.

Peer was directed by the district court to provide service in accordance with

Rule 4(i), which he failed to do. The fact that Peer was engaged in settlement

negotiations did not relieve him of his service obligation. Peer did not offer any

sufficient explanation for the delay that would constitute excusable neglect.

“The district court must weigh the effect on the party requesting the extension

against the prejudice to the defendant.” Kurka, 628 F.3d at 958. Peer issignificantly

affected by the dismissal of his claim because it is now barred by the statute of

limitations, but “the running of the statute of limitations does not require the district

court to extend time for service of process.” Adams v. Allied Signal Gen. Aviation

Avionics, 74 F.3d 882, 887 (8th Cir. 1996). Vilsack was already on notice and asked

for time to respond, so there was little prejudice to Vilsack. Although the difference

in disparity is greatly favoring Peer, the district court gave Peer instructions and a

reasonable time to provide proof of proper service. Peer failed to adhere to those

instructions and offered no sufficient explanation for that failure. Thus, we conclude

the district court did not abuse its discretion when it found there was no excusable

neglect.

III

For the foregoing reasons, we affirm the district court.

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