IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

STEPHEN JERKINS, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 14-0600-WS-M

 )

BALDWIN COUNTY SHERIFF, et al., ) 

 )

Defendants. )

 ORDER

The complaint was filed December 30, 2014. (Doc. 1). The file does not 

reflect that the plaintiff has perfected service or even sought the issuance of 

summons. 

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.

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

The plaintiff’s failure to perfect service within 120 days after filing the 

complaint exposes his action to dismissal without prejudice unless he shows “good 

cause” for his failure. Good cause exists “only when some outside factor such as 

reliance on faulty advice, rather than inadvertence or negligence, prevented 

service.” Prisco v. Frank, 929 F.2d 603, 604 (11th Cir. 1991).

Absent good cause, the Court may, but need not, allow additional time. 

Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1132 (11th Cir. 2005); accord 

Lepone-Dempsey v. Carroll County Commissioners, 476 F.3d 1277, 1281-82 (11th

Cir. 2007). In determining whether to exercise its discretion to extend the time for 

service despite the lack of good cause, a court considers whether the defendant is 

evading service, whether it is concealing defects in service, and whether the statute 

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of limitations will bar the re-filing of the lawsuit should it be dismissed. 

Horenkamp, 402 F.3d at 1132. This is “not an exhaustive list” of factors a court 

may consider. Lepone-Dempsey, 476 F.3d at 1182. 

The Court, recounting the foregoing history and legal principles, ordered 

the plaintiff to show cause why this action should not be dismissed without 

prejudice under Rule 4(m). (Doc. 3). The plaintiff has filed nothing in response. 

He has therefore failed to show good cause under Rule 4(m). Whether to permit 

the plaintiff additional time to perfect service is thus committed to the Court’s 

discretion.

Because the plaintiff has not responded to the Court’s show-cause order, 

the Court has no evidence the defendants are evading service or concealing defects 

in service. However, the Court notes that, should the plaintiff’s action be 

dismissed, the applicable statutes of limitations may bar any attempt to file a new 

action.1 Although “the running of the statute of limitations does not require that a 

district court extend the time for service of process,” Horenkamp, 402 F.3d at 

1133, the Court in its discretion allows the plaintiff additional time to perfect 

service. The plaintiff is given until July 8, 2015 to perfect service and to file 

proof of service. In the absence of satisfactory proof of service or a motion 

seeking additional time and an explanation why it is warranted, on July 8, 2015 the 

Court will, without further notice, dismiss this action without prejudice. 

 

DONE and ORDERED this 4th day of June, 2015.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE 

 1 The plaintiff asserts claims under the Family and Medical Leave Act, Title II of 

the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act. The 

limitations period under each of these provisions is two years. 29 U.S.C. § 2617(c)(1) 

(FMLA); Horsley v. University of Alabama, 564 Fed. Appx. 1006, 1007 (11th Cir. 2014) 

(ADA and Rehabilitation Act). The complaint reflects that all discriminatory and/or 

retaliatory actions occurred between December 2012 and January 2013. Thus, it appears 

the plaintiff’s claims would be subject to a limitations defense were this action to be 

dismissed and the plaintiff to file a new action. 

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