UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1045

SILVIA G. MARTINEZ,

Plaintiff – Appellant,

v.

UNITED STATES OF AMERICA; UNITED STATES

POSTAL SERVICE,

Defendants – Appellees.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Deborah K. Chasanow, Chief U.S. 

District Judge. (8:13-cv-00237-DKS)

Submitted: June 2, 2014 Decided: July 7, 2014

Before KING, DUNCAN, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Kenneth J. Coughlan, ANNE HOKE & ASSOCIATES, Baltimore, 

Maryland, for Appellant. Rod J. Rosenstein, United States 

Attorney, Jakarra J. Jones, Assistant United States Attorney, 

OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for 

Appellees.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Silvia Martinez appeals the dismissal of her claim for 

untimely service of process pursuant to Federal Rule of Civil 

Procedure 4(m). Although Martinez acknowledges that she did not 

timely serve process, she argues that the district court erred 

by failing to grant an extension of time required by Rule 4(m). 

For the reasons that follow, we affirm.

I.

On January 23, 2013, Martinez filed a complaint against the 

United States pursuant to the Federal Tort Claims Act. 28 

U.S.C. §§ 2671, et seq. Her claim arose from an automobile 

collision with a United States Postal Service vehicle. The

district court issued summonses the next day. On May 28, 125

days after the filing of the complaint, the district court had 

received no proof that the complaint and summons had been served 

on the United States, and requested a status report from 

Martinez addressing the issue of service. Martinez did not 

respond.

On June 13, the court ordered Martinez to show cause why 

her complaint should not be dismissed for failure to serve 

process within the requisite time period. See Fed. R. Civ. P. 

4(m). On June 25, Martinez filed a memorandum in support of a 

request for an extension of time. She stated that her attorney 
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had changed his primary email address but had failed to register 

the change in the court’s electronic case filing system (“ECF”)

and therefore had not been informed that the summonses had 

issued. Martinez conceded that her attorney had been unaware of 

the problem at the time, but asserted that he had subsequently 

corrected the email address. The district court granted 

Martinez’s motion, allowing her 30 additional days, until July 

30, to serve the United States.

Martinez served the United States on August 15, twenty days 

after the expiration of the extension. On November 18, the 

United States moved to dismiss Martinez’s complaint for failure 

to timely serve process. Fed. R. civ. P. 12(b)(5). Martinez 

filed a response claiming that she was entitled to a further 

extension because the ECF continued to send notifications only 

to her attorney’s incorrect email address, despite his diligent 

attempts to correct this problem. The district court found that

Martinez could show neither good cause nor excusable neglect for 

her failure to serve, and granted the government’s motion.

Martinez timely appealed.

II.

We review the dismissal of a complaint for failure to 

timely serve process for abuse of discretion. Shao v. Link 
4

Cargo (Taiwan) Ltd., 986 F.2d 700, 708 (4th Cir. 1993) (applying 

Rule 4(m)’s predecessor, Rule 4(j)).

III.

Rule 4(m) requires a plaintiff to serve the defendant 

within 120 days. A plaintiff may escape dismissal for failure 

to timely serve process only if she demonstrates “good cause” 

for the delay. Fed R. Civ. P. 4(m). If a plaintiff requests an 

extension of time after the expiration of the 120 day limitation 

period, she must also show that she “failed to act because of 

excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B).

Martinez acknowledges that she did not serve process within 

the limitation period and that she did not request an extension 

until after the expiration of that period. Therefore, to 

prevail on appeal, Martinez must show both excusable neglect and 

good cause. Because Martinez cannot show excusable neglect, we 

need not reach the question of good cause.

Martinez argues that her failure to timely serve process 

constitutes excusable neglect because it was the result of an 

error within the ECF that was outside her control. We disagree.

“Excusable neglect is not easily demonstrated.” Thompson 

v. E.I. DuPont de Nemours & Co., Inc., 76 F.3d 530, 533 (4th 

Cir. 1996) (internal quotation marks omitted)(interpreting 

excusable neglect in the context of Federal Rule of Appellate 
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Procedure 4(a)(5)). We have held that “a party that fails to 

act with diligence will be unable to establish that [her] 

conduct constituted excusable neglect.” Robinson v. Wix 

Filtration Corp., LLC, 599 F.3d 403, 413 (4th Cir. 

2010)(interpreting excusable neglect as used in Federal Rule of 

Civil Procedure 60(b)(1)).*

Here, Martinez’s attorney was clearly aware that the ECF

was sending notifications to an improper email address before 

the extension was granted. Even if he believed he had fixed the 

problem, a reasonably diligent attorney would have monitored

that email address or the court’s docket until he was certain

that the ECF was functioning properly. Martinez cannot 

establish that her conduct constituted excusable neglect. We 

therefore find no abuse of discretion in the district court’s 

dismissal of her complaint.

 * Excusable neglect generally has the same meaning 

throughout the federal procedural rules. See, e.g. Pioneer Inv. 

Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 

380, 392 (interpretation of excusable neglect as used in Federal 

Rule of Bankruptcy Procedure 9006(b)(1) was “strongly supported” 

by the meaning of excusable neglect as used in Federal Rule of 

Civil Procedure 6(b)); Thompson, 76 F.3d at 534–35 (excusable 

neglect interpreted the same in Federal Rule of Bankruptcy 

Procedure 9006(b)(1) as in Federal Rule of Appellate Procedure 

4(a)(5)).
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IV.

For the foregoing reasons, we affirm the dismissal of 

Martinez’s claim. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the 

materials before this court and argument would not aid in the 

decisional process.

AFFIRMED