FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT EFAW, 

Plaintiff-Appellee,

v.

TERESA WILLIAMS, Detention

Officer or Deputy Sheriff,

Winslow Jail, in her official and

individual capacity,

Defendant-Appellant,

and

GARY H. BUTLER, Navajo County

Sheriff; JACK KERR, Detention No. 04-16920

Officer or Deputy Sheriff in his D.C. No. official and individual capacity; 

CV-96-01751-PCT- MIKE DURAN, Jail Commander, MHM Navajo County Sheriff’s

Department; FARRELL YONNIE,

Detention Officer or Deputy

Sheriff at Navajo County Sheriff’s

Department in her official and

individual capacity; NAVAJO

COUNTY; NAVAJO COUNTY SHERIFF’S

OFFICE; GAILENE BUTLER, aka Jane

Doe Butler; DEBBIE KERR, aka Jane

Doe Kerr; JANE DOE DURAN; JANE

DOE YONNIE; JANE DOE WILLIAMS,

Defendants. 

613
ROBERT EFAW, 

Plaintiff-Appellee,

v.

TERESA WILLIAMS, Detention

Officer or Deputy Sheriff,

Winslow Jail, in her official and

individual capacity,

Defendant-Appellant,

and

GARY H. BUTLER, Navajo County No. 05-16062 Sheriff; JACK KERR, Detention

Officer or Deputy Sheriff in his D.C. No.

official and individual capacity;  CV-96-01751-PCTMIKE DURAN, Jail Commander, MHM

Navajo County Sheriff’s OPINION

Department; FARRELL YONNIE,

Detention Officer or Deputy

Sheriff at Navajo County Sheriff’s

Department in her official and

individual capacity; NAVAJO

COUNTY; NAVAJO COUNTY SHERIFF’S

OFFICE; GAILENE BUTLER, aka Jane

Doe Butler; DEBBIE KERR, aka Jane

Doe Kerr; JANE DOE DURAN; JANE

DOE YONNIE; JANE DOE WILLIAMS,

Defendants. 

Appeals from the United States District Court

for the District of Arizona

Mary H. Murguia, District Judge, Presiding

Argued and Submitted

October 19, 2006—San Francisco, California

614 EFAW v. WILLIAMS
Filed January 16, 2007

Before: Susan P. Graber, William A. Fletcher, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Graber;

Dissent by Judge W. Fletcher

EFAW v. WILLIAMS 615
COUNSEL

Randall H. Warner, Jones, Skelton & Hochuli, PLC, Phoenix,

Arizona, for the defendant-appellant. 

Dennis J. Glanzer, Glanzer Law Office, Flagstaff, Arizona,

for the plaintiff-appellee. 

OPINION

GRABER, Circuit Judge: 

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.

EFAW v. WILLIAMS 617
FACTUAL AND PROCEDURAL BACKGROUND

On August 9, 1995, Plaintiff was in custody at the Navajo

County jail in Winslow, Arizona. According to Plaintiff,

Sheriff’s Deputy Jack Kerr and Defendant entered his cell and

assaulted him. Plaintiff testified at trial that Kerr and Defendant struck him more than 20 times in the face, throat, and

head, and “four-pointed” him by handcuffing his hands and

feet to the bed with his arms splayed above his head. Plaintiff

was hospitalized later that night. 

Kerr created an “Offense Report” dated the same day the

incident occurred. The Offense Report asserts that Plaintiff

attacked Kerr and Defendant when they entered his cell and

that Kerr hit Plaintiff and shackled him in order to subdue

him. Kerr, Defendant, and Plaintiff were the only people present during the incident. 

Plaintiff’s original complaint was filed pro se on July 29,

1996, and was dismissed on technical grounds. He obtained

counsel and filed an amended complaint on October 4, 1996,

naming as defendants Navajo County, Navajo County Sheriff

Gary Butler, Deputy Kerr, Mike Duran, Farrell Yonnie,

Defendant, and each named defendant’s spouse. By January

9, 1997, Plaintiff had served process on all defendants except

Yonnie and Defendant, neither of whom worked for the Navajo County Sheriff’s Office at the time Plaintiff attempted to

serve them. On January 28, 1997, Plaintiff sought an extension of time within which to complete service of process. The

district court granted him an additional 180 days. He failed to

complete service on Defendant in the allotted time. 

Plaintiff was without counsel between October 7, 1997, and

April 9, 2001. On August 13, 2003, the district court granted

partial summary judgment to the other defendants, leaving

only Defendant and Kerr in the action. 

On September 9, 2003, more than seven years after filing

the complaint, Defendant Williams moved to dismiss herself

618 EFAW v. WILLIAMS
as a party under Rule 4(m) because Plaintiff had failed to

complete service of process. The district court denied her

motion and granted Plaintiff 30 days from the time of its

December 19, 2003, order to serve Defendant. Plaintiff finally

completed service, and the case went to trial with Williams as

the only remaining defendant. 

At trial, Defendant offered as evidence Kerr’s Offense

Report. The district court refused to admit the report on hearsay grounds because Defendant had failed to lay the proper

foundation to establish the report as a business record and the

district court questioned the trustworthiness of the report.

Kerr had died by the time of trial, and no party deposed him

before his death. 

On August 18, 2004, the district court entered judgment for

Plaintiff. The jury awarded Plaintiff $10,000 in nominal and

compensatory damages and $90,000 in punitive damages.

Defendant filed a timely appeal. 

STANDARD OF REVIEW

We review for abuse of discretion a district court’s decision

to extend the period for effecting service of process. Mann v.

Am. Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). 

DISCUSSION

[1] 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

EFAW v. WILLIAMS 619
for the failure, the court shall extend the time for service for an appropriate period. 

Fed. R. Civ. P. 4(m). 

[2] 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. 

[3] 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.1 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. 

[4] District courts have broad discretion to extend time for

service under Rule 4(m). In Henderson v. United States, 517

U.S. 654, 661 (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 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

1

In his December 12, 2003, motion for extension of time for service,

Plaintiff stated: “Plaintiff has attempted in several ways to locate Ms. Williams without success to this point in time. Some other methods of searching were too costly for Efaw, but there are funds available now for

additional search methods to find Ms. Williams.” 

620 EFAW v. WILLIAMS
to serve the complaint after that 120-day period.” Id. at 1090.

However, no court has ruled that the discretion is limitless. 

[5] 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. Its order merely cited Rule 4(m) and ruled: “Pursuant to Rule 4(m), the Court will order Plaintiff to serve Defendant Williams within thirty days from the date this Order is

filed. If Plaintiff fails to serve Defendant Williams within that

time, a subsequent motion to dismiss will be granted.” 

[6] 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. There was no evidence that Defendant attempted to evade service, that she left the state, or that

she took any other action that contributed to Plaintiff’s delay.

Plaintiff was represented by counsel for a significant portion

of the seven years, including the period in which he filed his

amended complaint, and he never claimed ignorance of the

service requirements even when he proceeded pro se. 

[7] 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. 

[8] Finally, the delay prejudiced Defendant. In the intervening seven years, the memories of all witnesses faded. Kerr,

the only other eyewitness to the incident, died. Neither party

deposed Kerr before his death, and Defendant was not served

until five years after Kerr died. Defendant had no reason to

depose Kerr during the two years he was available, after

Plaintiff filed the action and before Kerr died. 

EFAW v. WILLIAMS 621
[9] 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.2

[10] Defendant also challenged the district court’s exclusion at trial of the Kerr report on hearsay grounds. Because

dismissal is proper under Rule 4, we need not reach this issue.

JUDGMENT VACATED; REMANDED with instructions

to dismiss the action against Defendant Williams. Costs on

appeal are awarded to Defendant Williams. 

W. FLETCHER, Circuit Judge, dissenting: 

I respectfully dissent in this close case. Although seven

years is indeed an extraordinary delay in serving a defendant,

I would find that the district court did not abuse its broad discretion in granting an extension of time under Rule 4(m). 

A jury awarded Robert Efaw $100,000 in damages in a

lawsuit arising out of a series of beatings Efaw suffered over

the course of a day in the Navajo County jail in August 1995.

Although defendant Teresa Williams testified at trial that she

herself did not punch Efaw, she admitted that the officer acting with her, Jack Kerr, did punch him. She further admitted

that she and Kerr “four-pointed” Efaw by handcuffing his

arms and legs to the bed with his arms splayed above his

head, even though the normal position for a four-point

restraint is to put the person’s arms by his side. During the

2The dissent correctly points out that “Williams has been unable to

point us to a single case in which a court has held that a district court

abused its discretion in granting an extension under Rule 4(m).” Dissent

at 625. On the other hand, we have found no case upholding a delay of

anywhere near this magnitude. 

622 EFAW v. WILLIAMS
night following the beatings, a third officer discovered Efaw

still “four-pointed” and released him; later, she radioed for

paramedics and an ambulance after finding Efaw sprawled on

the floor of his cell with blood around his face. 

As the majority opinion recounts in greater detail, Efaw

failed to serve Williams for seven years, from 1996 to 2003.

Although Efaw timely served others among the defendants,

Williams was no longer working at the County Sheriff’s

Office when Efaw timely attempted to serve her, and he failed

to serve her during the 180-day extension he was granted in

January 1997. The court permitted Efaw’s counsel to withdraw in April 1997, and Efaw’s motion for appointment of

counsel was stricken in November 1997. Counsel next

appeared on Efaw’s behalf in April 2001. In September 2003,

Williams moved to dismiss herself as a party for Efaw’s failure to serve. Now represented by his new counsel, in December 2001 Efaw requested and received his second extension of

the time to serve. He then served Williams within the 30 days

the court granted him. 

We review for abuse of discretion a district court’s decision

to grant an extension under Rule 4(m). Mann v. Am. Airlines,

324 F.3d 1088, 1090 (9th Cir. 2003). Under the abuse of discretion standard, we reverse a trial court’s decision only when

we are “convinced firmly that the reviewed decision lies

beyond the pale of reasonable justification under the circumstances.” Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir.

2000). 

As we have previously noted, “[t]he 1993 amendments to

General Rule 4(m) gave courts greater leeway to preserve

meritorious lawsuits despite untimely service of process.”

United States v. 2,164 Watches, 366 F.3d 767, 772 (9th Cir.

2004). The amendments give courts “discretion to enlarge the

120-day period ‘even if there is no good cause shown.’ ” Henderson v. United States, 517 U.S. 654, 663 (1996) (quoting

Fed. Rule Civ. P. 4, Advisory Committee Note to 1993

EFAW v. WILLIAMS 623
Amendments, Subdivision (m)). A court may retroactively

grant such an extension after the 120-day period has expired.

Mann, 324 F.3d at 1090. 

In weighing whether to grant an extension in the absence

of good cause, the district court may properly take into

account whether the plaintiff could re-file the suit if it were

dismissed. “The district court’s discretion is not diminished

when the statute of limitations would bar re-filing of the suit

if the district court decided to dismiss the case instead of grant

an extension. To the contrary, the advisory committee notes

explicitly contemplate that a district court might use its discretion to grant an extension in that very situation: ‘Relief

may be justified, for example, if the applicable statute of limitations would bar the re-filed action.’ ” Id. at 1090-91 (quoting Fed. R. Civ. P. 4, Advisory Committee Note to 1993

Amendments, Subdivision (m)); accord De Tie v. Orange

Cty., 152 F.3d 1109, 1111 n.5 (9th Cir. 1998). This consideration should carry greater weight in § 1983 cases, because

“the public policy favoring resolution on the merits is ‘particularly important in civil rights cases.’ ” Hernandez v. City of

El Monte, 138 F.3d 393, 401 (1998) (quoting Eldridge v.

Block, 832 F.2d 1132, 1137 (9th Cir. 1987)). Here, the statute

of limitations would have prevented Efaw from re-filing his

excessive force claim if the district court had dismissed this

case. See TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir.

1999) (statute of limitations for Arizona § 1983 claims is two

years). 

Further, although Williams was prejudiced by delay, and

although seven years is an extraordinary delay, the most significant prejudice to Williams’ defense cannot be attributed to

this delay’s extraordinary length. The greatest harm to Williams’ defense between 1996 and 2003 was the death of Williams’ co-defendant Kerr. Kerr’s testimony might have

corroborated Williams’ account and convinced the jury to

hold in her favor. We were told at argument that Kerr died in

1998, only two years into the delay. Two years’ delay in serv624 EFAW v. WILLIAMS
ing a defendant is not extraordinary. See, e.g., McGuire v.

Turnbo, 137 F.3d 321, 323-24 (5th Cir. 1998) (service timely

where plaintiff served defendant within court’s extended

deadline, nearly two years after filing suit). Thus, the extraordinary length of the delay in this case contributed less to the

prejudice to Williams than it might seem at first blush, and

certainly contributed less than if Kerr had died in the seventh

year (in which case I might have joined the majority). 

Williams has been unable to point us to a single case in

which a court has held that a district court abused its discretion in granting an extension under Rule 4(m). I would

decline to do so in this case, despite Efaw’s long delay. Granting the extension was not “beyond the pale of reasonable justification under the circumstances,” because Efaw would

otherwise have been barred from litigating the merits of his

civil rights claim. Harman, 211 F.3d at 1174. I would defer

to the judgment of the district court.

EFAW v. WILLIAMS 625