In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-4726

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

THOMAS B. MCLAUGHLIN and

CHRISTINE MCLAUGHLIN,

Defendants-Appellants.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 2992—Joan Humphrey Lefkow, Judge.

____________

ARGUED NOVEMBER 14, 2006—DECIDED DECEMBER 8, 2006

____________

Before EASTERBROOK, Chief Judge, and POSNER and

COFFEY, Circuit Judges.

POSNER, Circuit Judge. Just five days before the expiration of the 10-year statute of limitations, 26 U.S.C. § 6502(a),

the government filed a complaint in federal district court

against Thomas McLaughlin for unpaid income taxes of

almost $3 million, including penalties and interest. (His

daughter was joined as a defendant because the government as part of its suit was seeking to foreclose a tax lien

on property that it mistakenly thought she had an interest

in. She has no stake in the case and is hereby dismissed
2 No. 05-4726

from it.) Seven weeks later the government mailed

McLaughlin a copy of the complaint and the standard

request to waive service. McLaughlin did not waive

service, though had he done so he would have avoided the

costs subsequently incurred by the government in serving him. Fed. R. Civ. P. 4(d)(2).

The normal deadline for service is 120 days from the

filing of the complaint. Fed. R. Civ. P. 4(m). But it can be

extended by the district court and was—three times—with

the result that McLaughlin was not served until 271 days

after the complaint had been filed. Although admitting

that he owes the full amount of money sought by the

government, he moved to dismiss the complaint on the

ground that the district judge should not have granted the

extensions of time. The judge denied the motion, and

McLaughlin appeals. If the appeal succeeds, the government will not be able to file a new suit, because the statute of limitations has now expired.

Initially, because of unspecified “budgetary considerations” the Justice Department lawyer handling the case

did not hire a process server to serve the complaint but

instead instructed an IRS officer to do so. The officer,

after failing to serve McLaughlin at his home, sought him

out at his office. He wasn’t there, so the officer left the

complaint with McLaughlin’s daughter, who was. Mistakenly believing that leaving the complaint with an adult at

the defendant’s place of business is effective service (as it

would be if it were the defendant’s home, Fed. R. Civ. P.

4(e)(2), the difference being that there might be so many

people at a defendant’s place of business that process

left with one of them might very well not reach the defendant), the IRS officer told the Justice Department lawyer

that the defendant had been served. By the time the lawyer
No. 05-4726 3

discovered the error, the 120-day deadline had expired, but

she filed a motion for a 30-day extension of time anyway, and it was granted. The government then hired

a professional process server, who tried repeatedly to

serve the defendant, without success, necessitating a second extension of time sought from and granted by the

judge. With success still eluding the process server, the

government hired another process server, who, a third

extension of time having been requested and granted,

finally served McLaughlin.

Although the government argued in the district court

that McLaughlin had tried to evade service and that this

was good cause for the long delay in accomplishing

service, the judge disagreed and concluded (rather implausibly, considering the length of time it took professional

process servers to succeed in serving McLaughlin) that he

had not tried to evade service and that therefore the

government had failed to demonstrate good cause for its

delay in serving him. Nevertheless, as we said, the judge

denied the motion to dismiss the suit.

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 (1996); Coleman v.

Milwaukee Board of School Directors, 290 F.3d 932, 934 (7th
4 No. 05-4726

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.
No. 05-4726 5

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

(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). Service

of process can be tricky, but the government has not

much in the way of excuses for missing the deadline in this

case by almost five months, if (a big if) the judge’s finding that McLaughlin did not evade service is accepted;

and though we are skeptical, we do not think the finding clearly erroneous and so we accept it as a premise of

our consideration of the appeal. So if McLaughlin was

not trying to evade service, why did it take the government

nine months to serve him? Why did “budgetary considerations” induce the government’s lawyer to have

service attempted by someone who apparently didn’t

know Rule 4, yet not prevent the subsequent hiring of

professional process servers in the same case?

It is a nice question whether only the government’s

first motion for an extension should be considered untimely, or the second and third as well since they too
6 No. 05-4726

(obviously) were filed after the 120-day period had

elapsed. We need not decide, since, as we have said, we

do not consider excusable neglect the test for extending

the deadline for service. This case is a good example of the

wisdom of Rule 4(m) in allowing a judge to excuse a

delay in service even if the plaintiff has no excuse at all.

Since McLaughlin admits liability, he could not be prejudiced by having to defend a case that might have become

harder to defend by passage of time, for example because

of the death or fading memory of defense witnesses. Boley

v. Kaymark, 123 F.3d 756, 758 (3d Cir. 1997). Anyway he

received a copy of the complaint within the 120-day

period—probably two copies; almost certainly his

daughter showed him the ominous document that the

IRS officer had left with her addressed to him. He knew

he’d been sued, and armed with that knowledge he

could begin his defensive efforts if he wished to contest

liability—which he did not. He could not have been

prejudiced to even the slightest extent by the government’s service fumbles.

When delay in service causes zero prejudice to the

defendant or third parties (or the court itself), the granting of extensions of time for service, whether before or

after the 120-day period has expired, cannot be an abuse of

discretion. United States v. 2,164 Watches, More or Less,

Bearing a Registered Trademark of Guess?, Inc., supra, 366 F.3d

at 773; Coleman v. Milwaukee Board of School Directors, supra,

290 F.3d 932, 934. The icing on the cake is that the suit if

dismissed could not be reinstated, the statute of limitations having expired five days after the complaint was

filed, see Panaras v. Liquid Carbonic Industries Corp., 94

F.3d 338, 341 (7th Cir. 1996); Horenkamp v. Van Winkle &

Co., supra, 402 F.3d at 1133; Mann v. American Airlines, 324
No. 05-4726 7

F.3d 1088 (9th Cir. 2003); Committee Note, supra, and the

defendant having admitted liability, dismissal would have

presented him with a windfall—and a big one. It would

have amounted to fining the government $3 million for

doing something that did no harm to anyone and handing

over the proceeds of the fine to a wrongdoer.

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-8-06