IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

PNCEF, LLC, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 09-0801-WS-C

 )

HENDRICKS BUILDING SUPPLY, )

LLC, et al., )

 )

Defendants. )

ORDER

This matter comes before the Court on plaintiff’s Response to Order to Show Cause (doc.

11), and incorporated request for enlargement of the time limit for service of process.

On December 9, 2009, plaintiff, PNCEF, LLC, filed its Complaint against defendants

Hendricks Building Supply, LLC and Hendricks Companies, Inc. Summonses were issued to

plaintiff for service on defendants on December 10, 2009. (Doc. 5.) To date, defendants have

not appeared, and plaintiff has not submitted proof of service. The 120-day time limit for service

prescribed by Rule 4(m), Fed.R.Civ.P., expired on or about April 8, 2010. On April 21, 2010,

the undersigned entered a Show Cause Order (doc. 8) directing plaintiff to show cause why the

Complaint should not be dismissed without prejudice pursuant to Rule 4(m).

The law is clear that “[a] plaintiff is responsible for serving the defendant with a

summons and the complaint within the time allowed under Rule 4(m).” Lepone-Dempsey v.

Carroll County Com’rs, 476 F.3d 1277, 1280-81 (11th Cir. 2007). Rule 4(m) provides in

pertinent part as follows:

“If a defendant is not served within 120 days after the complaint is filed, the court

– on motion or on its own after notice to the plaintiff – must dismiss the action

without prejudice against that defendant or order that service be made within a

specified time. But if the plaintiff shows good cause for the failure, the court

must extend the time for service for an appropriate period.” 

Id. (emphasis added). On its face, then, Rule 4(m) provides for dismissal if service is not

achieved within 120 days, absent either (a) good cause for a plaintiff’s dilatory service or (b) a

Case 1:09-cv-00801-WS-C Document 12 Filed 04/29/10 Page 1 of 4
-2-

decision by the Court to exercise its discretion in favor of extending the time for service without

a showing of good cause. See, e.g., Rance v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286

(11th Cir. 2009) (recognizing that dismissal under Rule 4(m) may be avoided if a plaintiff shows

good cause, or if other circumstances warrant extension based on the facts of the case); WillBurn Recording & Pub. Co. v. Universal Music Group Records, 2008 WL 4793291, *1 (S.D.

Ala. Nov. 4, 2008) (similar). Where good cause is shown, a court must extend time for service;

however, in the absence of good cause, a court may, in its discretion, either allow an extension or

dismiss the case without prejudice. See Scott v. Hern, 216 F.3d 897, 912 (10th Cir. 2000);

Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996).

The plaintiff bears the burden of showing good cause. See, e.g., Durgin v. Mon, 659 F.

Supp.2d 1240, 1258 (S.D. Fla. 2009) (“A plaintiff has the burden of demonstrating the existence

of ‘good cause’ justifying service outside of the 120-day deadline.”); Wilson v. Prudential

Financial, 332 F. Supp.2d 83, 87 (D.D.C. 2004) (“where the plaintiff fails to effect proper

service within the 120-day time limit laid down by Rule 4(m), the plaintiff carries the burden of

showing good cause for that failure”). A showing of good cause must include evidence that

plaintiff “(1) has proceeded in good faith; (2) has a reasonable basis for noncompliance and (3)

the basis for the delay was more than simple inadvertence or mistake.” Durgin, 659 F. Supp.2d

at 1258; see also Lepone-Dempsey, 476 F.3d at 1281 (good cause exists only “when some

outside factor, such as reliance on faulty advice, rather than inadvertence or negligence,

prevented service”) (citations omitted).

To satisfy its burden, plaintiff, PNCEF, LLC, comes forward with evidence that, upon

filing the Complaint in December 2009, it promptly sought to obtain service of process on both

defendants, Hendricks Building Supply, LLC and Hendricks Companies, Inc. In particular,

PNCEF mailed copies of the summons and Complaint to both Hendricks entities in care of their

registered agent for service of process, using the registered agent name and address information

listed on the website of the Alabama Secretary of State for each company. When service proved

unsuccessful as to both defendants (one package having been forwarded to another address, with

no further details as to delivery, and the other having been returned to sender as unclaimed),

PNCEF began exploring other methods of effecting service of process by attempting to contact

the Hendricks entities’ registered agent, S. Kenneth Hendricks, directly. Although PNCEF was

Case 1:09-cv-00801-WS-C Document 12 Filed 04/29/10 Page 2 of 4
-3-

unable to reach Kenneth Hendricks, it did successfully contact Mr. Hendricks’ son, Kent

Hendricks, who declined to provide either contact information for his father or any means of

perfecting service on the Hendricks entities. PNCEF indicates that its efforts to achieve service

of process on defendants are ongoing, as evidenced by the alias summons issued for Hendricks

Companies, Inc., on April 22, 2010. (See doc. 10.)

In the undersigned’s view, plaintiff’s showing suffices to establish the requisite good

cause for purposes of Rule 4(m). PNCEF has been diligent and has proceeded in good faith to

attempt service on defendants, using service addresses that defendants provided to the Alabama

Secretary of State. When those efforts failed, PNCEF appropriately followed up by endeavoring

to locate Mr. Hendricks (the registered agent), without success, and took the additional step of

finding Mr. Hendricks’ son, who apparently stonewalled PNCEF’s inquiries. Clearly, there is a

reasonable basis for PNCEF’s noncompliance with the Rule 4(m) deadline, and that basis for

delay does not consist of mere negligence or inadvertence on plaintiff’s part. By all

appearances, defendants are proceeding in bad faith, inasmuch as they have supplied inaccurate

(or at least outdated) registered agent information to state authorities and have refused to

cooperate with plaintiff’s attempts to obtain service. Under these circumstances, the “good

cause” provision of Rule 4(m) entitles plaintiff to additional time for service of process here. 

See generally Horenkamp v. Van Winkle and Co., 402 F.3d 1129, 1132-33 (11th Cir. 2005) (relief

from Rule 4(m) deadline “may be justified ... if the defendant is evading service or conceals a

defect in attempted service”) (citation omitted); Coleman v. Milwaukee Bd. of School Directors,

290 F.3d 932, 934 (7th Cir. 2002) (“Good cause means a valid reason for delay, such as the

defendant’s evading service.”); United States v. Sea Bay Development Corp., 2007 WL 1378544,

*5 (E.D. Va. May 8, 2007) (“A defendant’s evasion of service can constitute good cause.”).

Even if PNCEF’s showing of good cause were wanting, the Court would still grant

plaintiff relief from the 120-day deadline. After all, “Rule 4(m) grants discretion to the district

court to extend the time for service of process even in the absence of a showing of good cause.”

Horenkamp, 402 F.3d at 1132. Indeed, the Eleventh Circuit has opined that “when a district

court finds that a plaintiff fails to show good cause for failing to effect timely service pursuant to

Rule 4(m), the district court must still consider whether any other circumstances warrant an

extension of time based on the facts of the case.” Lepone-Dempsey, 476 F.3d at 1282. In

Case 1:09-cv-00801-WS-C Document 12 Filed 04/29/10 Page 3 of 4
1 See id.; Feingold v. Hankin, 269 F. Supp.2d 268, 277 (S.D.N.Y. 2003) (discretion

to extend Rule 4(m) deadline turns on such factors as whether statute of limitations would bar refiling, whether defendant attempted to conceal defect in service, whether defendant would be

prejudiced by the extension, and whether defendant had actual notice of lawsuit); Colasante v.

Wells Fargo Corp., 211 F.R.D. 555, 561 (S.D. Iowa 2002) (similar).

2 Plaintiff is cautioned to use this extension wisely and to exercise diligence in

locating and serving defendants. The Court will not extend the Rule 4(m) deadline indefinitely

merely because defendants’ registered agent for service of process has proven elusive. Absent

unanticipated obstacles, the enlargement granted herein should be adequate to enable PNCEF,

with diligence, to perfect service on defendants.

-4-

determining whether to exercise its discretion in favor of such an extension, this Court may

consider such factors as whether, for example, the applicable statute of limitations would bar the

refiled action, whether the defendant is evading service or has otherwise concealed a defect in

service, and whether the defendant had actual notice of the suit.1

 The record reflects that PNCEF

has attempted to establish contact with and to perfect service of process on defendants several

times. Those efforts have not borne fruit, but it is evident that defendants (or at least their

registered agent) have actual knowledge of this lawsuit and PNCEF’s attempts to serve them.

Furthermore, it appears that no substantial prejudice will accrue to defendants by virtue of a

short extension of the Rule 4(m) deadline. Taken in the aggregate, these circumstances justify a

discretionary extension of the 120-day deadline for service of process in this case. 

In light of the foregoing, the Court extends the time for service under Rule 4(m) for a

period of 60 days from its original setting. The deadline for plaintiff to perfect service of process

on defendants is hereby extended through and including June 7, 2010.

2

DONE and ORDERED this 29th day of April, 2010.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

Case 1:09-cv-00801-WS-C Document 12 Filed 04/29/10 Page 4 of 4