IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

LELA BOWMAN, :

Plaintiff, :

vs. CA 06-0041-BH-C

:

JO ANNE B. BARNHART,

Commissioner of Social Security, :

Defendant.

ORDER

On June 5, 2006, the undersigned entered an order requiring the

plaintiff to show cause why the instant case should not be dismissed without

prejudice in accordance with Rule 4(m) of the Federal Rules of Civil

Procedure due to the failure to perfect service of process upon the defendant,

Jo Anne B. Barnhart, as well as Alberto Gonzales and Deborah Rhodes. (Doc.

6) The plaintiff responded to this order on June 12, 2006, and therein attempts

to establish good cause for failing to timely perfect service of process and

requesting an additional thirty (30) days to serve the defendant. (Doc. 8)

While, as explained below, the undersigned does not find an establishment of

good cause it is clear that a showing of good cause is not required.

Accordingly, the undersigned will allow plaintiff a period of eleven (11) days

Case 2:06-cv-00041-BH-C Document 9 Filed 06/21/06 Page 1 of 10
1 Plaintiff’s counsel has requested a thirty-day extension of time in order “to

acquire the proper paperwork to serve the aforementioned persons, become well versed in regard

to all issues in this case and properly represent the Plaintiff.” (Doc. 8, ¶ 5) Plaintiff’s counsel

should have no problem acquiring the proper paperwork for service of process by the stated

deadline since all that is needed is a call to the Clerk’s Office. In addition, plaintiff’s counsel will

have a sufficient period of time after service of process to become “well versed in regard to all

issues in this case” since, by standing order, this Court allows the Commissioner of Social

Security a period of ninety (90) days from service of the complaint to file an answer and

administrative transcript (Doc. 5, ¶ 1) and extends to plaintiff a thirty (30) day period of time

from the filing of the answer to file and serve her proposed report and recommendation (id., at ¶

3).

2

from the date of this order, that is, until July 3, 2006, to perfect service of

process, as opposed to the 30 days requested.1

After expiration of the 120-day time limit, as here, Rule 4(m) affords

the plaintiff two safety hatches to escape dismissal of the complaint and those

are through a showing of "good cause" or by convincing the court that it

should exercise its discretion and extend the time for service even absent a

showing of good cause. Adams v. AlliedSignal General Aviation Avionics, 74

F.3d 882, 887 (8th Cir. 1996); MCI Telecommunications Corp. v.

Teleconcepts, Inc., 71 F.3d 1086, 1098 (3rd Cir. 1995), cert. denied, 519 U.S.

815, 117 S.Ct. 64, 136 L.Ed.2d 25 (1996); Petrucelli v. Bohringer &

Ratzinger, 46 F.3d 1298, 1305 (3rd Cir. 1995); see also Goodher v. United

States, 2005 WL 1785305, *2 (D. N.J. 2005) (“In its current version Rule 4(m)

provides two separate bases for extending the 120 day service period. As

before, the period could be extended upon a showing by the plaintiff of good

Case 2:06-cv-00041-BH-C Document 9 Filed 06/21/06 Page 2 of 10
3

cause for its failure to timely serve. However, the Court may, ‘on its own

initiative after notice to the plaintiff, . . . [either] dismiss the action without

prejudice . . . or direct that service be effected within a specified time, . . . .’

As noted in the Advisory Committee Notes to the 1993 amendments, Rule 4(m)

now ‘authorizes the court to relieve a plaintiff of the consequences of an

application of this subdivision even if there is not good cause shown.’”); Fahy

v. Page, 2004 WL 1393578, *1 (N.D. Ill. 2004) (“If good cause for an

extension of time to effect service is shown, then Rule 4(m) requires a court

to grant the extension. . . . Even if good cause is not shown, a court has

discretion to grant an extension of time beyond the 120-day period provided

for in Rule 4(m).”). Contra Zachery v. Thigpen, 895 F.Supp. 1472, 1474

(M.D.Ala. 1995) (a showing of good cause is the only safety hatch available

to escape dismissal).

[T]he plain language of the rule itself explains

that in all cases, the court has the option of

dismissing the action or extending time for

service. The fact that the word "shall" is used

along with the disjunctive "or" in the first clause

indicates that the court has discretion to choose

one of these options. As an exception to this

general provision, the second clause notes that if

good cause exists, the district court has no choice

but to extend time for service. Thus, the logical

inference that can be drawn from these two

clauses is that the district court may, in its

Case 2:06-cv-00041-BH-C Document 9 Filed 06/21/06 Page 3 of 10
4

discretion, extend time even absent a finding of

good cause.

Petrucelli, 46 F.3d at 1305; see also Adams, supra, 74 F.3d at 887;

Fed.R.Civ.P. 4(m) advisory committee's note (1993) ("The new subdivision

explicitly provides that the court shall allow additional time if there is good

cause for the plaintiff's failure to effect service in the prescribed 120 days, and

authorizes the court to relieve a plaintiff of the consequences of an application

of this subdivision even if there is no good cause shown"). 

The Magistrate Judge agrees with the Third and Eight Circuits'

interpretation of 4(m) and therefore, will first determine whether good cause

exists for an extension of time. If good cause exists this Court must extend the

time for service; however, if good cause is not found to exist the undersigned

will then consider whether this Court, in its discretion, should dismiss the case

without prejudice or extend time for service. See Petrucelli, 46 F.3d at 1305.

Good cause is due to be equated with the concept of "excusable

neglect" outlined in Fed.R.Civ.P. 6(b)(2), "which requires 'a demonstration of

good faith on the part of the party seeking an enlargement and some reasonable

basis for noncompliance within the time specified in the rules.'" MCI

Telecommunications Corp., supra, 71 F.3d at 1097; see also Adams, 74 F.3d

at 887 ("A showing of good cause requires at least 'excusable neglect'--good

Case 2:06-cv-00041-BH-C Document 9 Filed 06/21/06 Page 4 of 10
5

faith and some reasonable basis for noncompliance with the rules"); Kersh v.

Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988) ("'[G]ood cause . . . would

appear to require at least as much as would be required to show excusable

neglect, as to which simple inadvertence or mistake of counsel or ignorance

of the rules usually does not suffice, and some showing of "good faith on the

parties seeking enlargement and some reasonable basis for noncompliance

within the time specified" is normally required.'"); Lowe v. Hart, 157 F.R.D.

550, 553 (M.D.Fla. 1994) (same as Kersh). The undersigned recognizes that

"courts have found that factors outside a plaintiff's control, such as sudden

illness, natural catastrophe or evasion of service of process," will satisfy this

requirement. Zachery, supra, 895 F.Supp. at 1474 (citations omitted); see also

Quann v. Whitegate-Edgewater, 112 F.R.D. 649, 659 (D. Md. 1986) (evasion

of service in the face of plaintiff's attempts to effect service constitutes good

cause). However, absence of prejudice alone can never constitute good cause

to excuse late service, MCI Telecommunications Corp., 71 F.3d at 1097;

Zachery, 895 F.Supp at 1474-1475 (citations omitted); Quann, 112 F.R.D. at

661, nor will inadvertent error, Petrucelli, 46 F.3d at 1307 (delay resulting

from inadvertence of counsel need not be excused); Hamilton v. Endell, 981

F.2d 1062, 1065 (9th Cir. 1992) (inadvertent error is not good cause); Prisco

Case 2:06-cv-00041-BH-C Document 9 Filed 06/21/06 Page 5 of 10
6

v. Frank, 929 F.2d 603, 604 (11th Cir. 1991) (inadvertence or negligence does

not establish good cause); Tomney v. International Center for the Disabled,

2003 WL 1990532, *3 (S.D. N.Y. 2003) (“While Rule 4(m) does not define

good cause, it is commonly held that ‘mistake or inadvertence of counsel does

not constitute “good cause” justifying failure to effect timely service of

process.’”); Quann, supra, 112 F.R.D. at 659 (counsel's inadvertence is

precisely the factor the rule is aimed at); Coleman v. Greyhound Lines, Inc.,

100 F.R.D. 476, 477 (N.D.Ill. 1984) (inadvertence of counsel does not

establish good cause), or ignorance or unfamiliarity with the rule governing

service, Tuke v. United States, 76 F.3d 155, 156 (7th Cir. 1996) (ignorance

may be an explanation but is not an excuse); Hamilton, 981 F.2d at 1065

(ignorance of governing rules is no excuse); Kersh, 851 F.2d at 1512 ( a pro

se plaintiff's ignorance of the law is no excuse); Zachery, 895 F.Supp. at 1476

n. 5 (an attorney's unfamiliarity with the federal rules does not warrant a

finding of good cause); Lowe, 157 F.R.D. at 553 (a pro se plaintiff's ignorance

of the law, that is, the fact that she is confused and uninformed regarding the

rule governing service, is no excuse), excuse a litigant's failure to effect timely

service. 

Melissa B. Horner, Esquire, who filed her notice of appearance as

Case 2:06-cv-00041-BH-C Document 9 Filed 06/21/06 Page 6 of 10
2 Ms. Horner implicitly admits inadvertence on her behalf inasmuch as she

concedes that this case was transferred to this Court on January 25, 2006 (Doc. 8, at ¶ 3) and

contends that “[i]t was not until the undersigned received access to the CM/ECF in the Southern

District that [she] became aware that certain matters had been filed by Mr. Ray on behalf of this

firm.” (Id. at ¶ 4) The undersigned must read these two paragraphs together as establishing that

Ms. Horner had access to information, as of January 25, 2006, establishing the need to serve the

defendant and that she inadvertently failed to perfect service.

7

counsel of record for plaintiff on June 12, 2006 (Doc. 7), avers that a former

attorney for R.D. Pitts & Associates, P.C., Patrick Ray, Esquire, who left the

firm on September 30, 2005, originally filed this action in the Middle District

of Alabama on February 1, 2005, and “was the only member of the firm who

was aware that this action had been filed and was solely responsible for the

prosecution of the same.” (Doc. 8, at ¶ 2; see also id., at ¶¶ 1, 3 & 5)

According to Ms. Horner, it was not until she “received access to the CM/ECF

in the Southern District that [she] became aware that certain matters had been

filed by Mr. Ray on behalf” of the firm. (Id. at ¶ 4; see also id. (“Prior to that

time, the undersigned [was] unable to ascertain the current status of any of the

matters Mr. Ray was working on prior to his departure from this firm.”)). As

one court has well stated, the reasons advanced as good cause in this case are

really no cause at all. See Coleman, supra, 100 F.R.D. at 477. In effect, what

Ms. Horner is arguing is that attorney negligence by Ray and inadvertence on

her behalf2

 led to the defendant not being served in this case. As alluded to

Case 2:06-cv-00041-BH-C Document 9 Filed 06/21/06 Page 7 of 10
3 The Magistrate Judge is in agreement with the Third Circuit's stance that "a

district court may not consider the fact that the statute of limitations has run until after it has

conducted an examination of good cause." Petrucelli, 46 F.3d at 1306.

8

above, however, it is well established that inadvertence or negligence does not

establish good cause. See, e.g., Prisco, supra, 929 F.2d at 604.

The lack of good cause for the failure to serve the defendant within 120

days of the formal filing of the complaint makes it necessary for this Court to

consider whether it should, in its discretion, dismiss the case without prejudice

or extend the time for service. "The Advisory Committee note provides some

guidance as to what factors the district court should consider when deciding

to exercise its discretion to extend time for service in the absence of a finding

of good cause." Petrucelli, supra, 46 F.3d at 1305. The Committee explains,

for instance, that relief may be justified "'if the applicable statute of limitations

would bar the refiled action, or if the defendant is evading service or conceals

a defect in attempted service.'" Id. at 1305-1306, quoting Fed.R.Civ.P. 4(m)

advisory committee's note (1993). However, "the running of the statute of

limitations does not require the district court to extend time for service of

process[,]" id. at 1306, and does not establish good cause,3

 as to read the rule

and advisory note otherwise "would effectively eviscerate Rule 4(m) and

defeat the purpose and bar of statutes of repose." Id., at n.7. 

Case 2:06-cv-00041-BH-C Document 9 Filed 06/21/06 Page 8 of 10
9

42 U.S.C. 405(g) provides that “[a]ny individual, after any final

decision of the Commissioner of Social Security made after a hearing to which

he was a party, irrespective of the amount in controversy, may obtain a review

of such decision by a civil action commenced within sixty days after the

mailing to him of notice of such decision or within such further time as the

Commissioner of Social Security may allow.” It is well established that the 60-

day requirement set out in § 405(g) is not jurisdictional, but rather is a statute

of limitations which is waivable by the parties and subject to the doctrine of

equitable tolling. See Bowen v. City of New York, 476 U.S. 467, 478-480, 106

S.Ct. 2022, 2029-2030, 90 L.Ed.2d 462 (1986). It is apparent to the

undersigned that dismissal of the instant case for failure to timely serve the

defendant would obviously bar plaintiff from refiling her complaint under the

statute of limitations. Moreover, given that the primary objective of the

disability insurance aspect of the Social Security Act is to provide “workers

and their families with basic protection against hardships created by the loss

of earnings due to illness[,]” Mathews v. Castro, 429 U.S. 181, 185-186, 97

S.Ct. 431, 434, 50 L.Ed.2d 389 (1976), the undersigned finds that any

prejudice to the defendant resulting from late service of process would be so

minimal as to be practically non-existent when compared to the obvious

Case 2:06-cv-00041-BH-C Document 9 Filed 06/21/06 Page 9 of 10
10

prejudice that would be visited upon the plaintiff with a dismissal of the

complaint for failure to timely perfect service of process. These circumstances

justify the exercise of the Court’s discretion under Rule 4(m) to relieve

Bowman of the strict application of the 120-day time limit even despite

plaintiff’s failure to show good cause. 

Plaintiff is ORDERED to perfect service of process upon the named

defendant, Jo Anne B. Barnhart, as well as Alberto Gonzales and Deborah

Rhodes, on or before July 3, 2006. The failure of plaintiff to perfect service

of process by the stated deadline will result in the undersigned entering a

report and recommendation that this case be dismissed.

DONE and ORDERED this the 21st day of June, 2006.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 2:06-cv-00041-BH-C Document 9 Filed 06/21/06 Page 10 of 10