IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CORETTA E. TAYLOR, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 15-0302-WS-C

 )

ALORICA, INC., )

 )

Defendant. )

 ORDER

This matter is before the Court on the plaintiff’s motion for extension of 

time. (Doc. 13). Upon consideration, the Court concludes the motion is due to be 

granted in part.

The complaint was filed on June 9, 2015, and the defendant has yet to be 

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

complaint exposes her action to dismissal without prejudice under Federal Rule of 

Civil Procedure 4(m). However, “if the plaintiff shows good cause for the failure, 

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

The Court ordered the plaintiff to show cause why this action should not be 

dismissed under Rule 4(m), (Doc. 12), and the instant motion followed. The 

plaintiff states that her original attorney did not seek issuance of summons until 

August 25, 2015 and that he withdrew in favor of present counsel on September 

29, 2015. (Doc. 13). 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). In particular,

“inadvertence of [the] attorney” does not constitute good cause. Anderson v. Iron 

Will, Inc., 2008 WL 2157145 at *2 (S.D. Ala. 2008) (internal quotes omitted). 

Because the plaintiff has shown only counsel’s inadvertence, she has not shown 

good cause.

Case 1:15-cv-00302-WS-C Document 14 Filed 11/06/15 Page 1 of 3
2

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 

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

Horenkamp, 402 F.3d at 1132. Since the plaintiff states that the defendant “has no 

current knowledge of the lawsuit pending against it,” (Doc. 13 at 1), the first two 

of these factors cannot favor an extension of time.

The plaintiff brings claims for discrimination, retaliation and failure to 

accommodate under the Americans with Disability Act, as well as a claim under 

the Family and Medical Leave Act (“FMLA”) and a claim for breach of contract. 

(Doc. 1). The FMLA claim challenges the plaintiff’s termination in February 

2015; the breach of contract claim challenges the failure to pay the plaintiff her 

final paycheck in or after February 2015. (Id. at 12, 16-17). The statute of 

limitations would not bar the re-filing of these claims should the action be 

dismissed under Rule 4(m).1 However, the ADA claims, since they must be 

brought within 90 days after receipt of a right-to-sue letter, might be subject to a 

limitations defense if this action is dismissed.2 The Court therefore in its 

discretion will afford the plaintiff additional time within which to effect service of 

process.

The plaintiff asks for an additional 60 days in which to effect service of 

process. (Doc. 13 at 2). The Court cannot perceive why such an extended period 

is required; a one-minute search of the Alabama Secretary of State’s online 

records reveals the identity and address of the defendant’s registered agent. 

 1 The FMLA statute of limitations is two years. 29 U.S.C. § 2617(c)(1). The 

Alabama statute of limitations for a breach of contract claim is six years. Ala. Code § -.

2 The right-to-sue letter is dated March 11, 2015. (Doc. 6-1).

Case 1:15-cv-00302-WS-C Document 14 Filed 11/06/15 Page 2 of 3
3

For the reasons set forth above, the motion for extension of time is granted 

in part. The plaintiff is ordered to file, on or before December 7, 2015, proof of 

service on the defendant, failing which this action will be dismissed without 

prejudice pursuant to Rule 4(m) without further notice. To the extent the plaintiff 

seeks other or additional relief, her motion is denied.

DONE and ORDERED this 6th day of November, 2015. 

 

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

Case 1:15-cv-00302-WS-C Document 14 Filed 11/06/15 Page 3 of 3