IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

REBECCA SPENCE,

Plaintiff,

v.

HONORABLE RAY LAHOOD, et al.,

Defendants.

HONORABLE JEROME B. SIMANDLE

Civil No. 11-3972 (JBS/AMD)

OPINION

APPEARANCES:

Hyder A. Naqvi, Esq.

AHMED NAQVI RODRIGUEZ LLP

22 Cortland Street, 16th Floor

New York, NY 10007

Attorney for Plaintiff 

Paul J. Fishman

United States Attorney

By: Irene E. Dowdy

Assistant United States Attorney 

OFFICE OF THE UNITED STATES ATTORNEY

401 Market Street, 4th Floor

P.O. Box 2098

Camden, NJ 08101

Attorneys for Defendants

SIMANDLE, Chief Judge:

I. INTRODUCTION

This matter involving alleged employment discrimination comes 

before the Court on Defendants’ motion to dismiss for lack of personal 

jurisdiction and insufficient service of process. [Docket Item 7.] 

Both parties agree that proper service was not made against the United 

States, as required by Federal Rule of Civil Procedure 4(i)(1), within 

the 120 day restriction on service set by Federal Rule of Civil 

Procedure 4(m). The principal issue to be determined is whether 

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Plaintiff is entitled to an extension of the time for an appropriate 

period to complete service through either a showing of good cause 

for the failure to provide timely service or through the discretionary 

exercise of the Court. As explained below, the Court (1) finds that

the failure to effect service lacked good cause but (2) decides to 

discretionarily extend the time period for service, conditioned upon 

Plaintiff serving Defendant with all required early disclosures under 

Rule 26(a)(1), Fed. R. Civ. P., within 14 days. 

II. BACKGROUND

A. Facts

Plaintiff, Rebecca Spence a/k/a Khadijah Spence (“Plaintiff” 

or “Ms. Spence”), filed this lawsuit against the Honorable Ray LaHood, 

Secretary of Transportation; the United States Department of 

Transportation (“DOT”); and the Federal Aviation Administration

(“FAA”) based on Defendants’ termination of Ms. Spence’s employment 

at the FAA’s William J. Hughes Tech Center (collectively, 

“Defendants”). Ms. Spence alleges that the termination of her 

employment as a Management and Program Analyst resulted from 

religious, racial, and national origin discrimination on the part 

of the FAA. She further alleges that she was terminated in retaliation 

for her actions investigating, disclosing, and opposing said 

discrimination. (Compl. ¶1.) These actions, Plaintiff alleges, 

constitute violations of the Civil Rights Act of 1866, 42 U.S.C. § 

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1981; Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 

§ 2000e et seq.; and the New Jersey Law Against Discrimination 

(“NJLAD”) for which Plaintiff seeks declaratory and injunctive relief 

and damages. (Compl. ¶1.) 

B. Procedural History

Because an issue in this case is when certain United States

agencies were served and whether good cause exists for delays in 

service, the Court will briefly discuss the timeline of Plaintiff’s 

suit.

1

The DOT Office of Civil Rights issued Plaintiff’s “Notice of 

the Right to Sue” on April 9, 2011, valid for 90 days thereafter.

(Rodriguez Cert. ¶6.) On June 27, 2011, Ms. Spence retained the 

recently formed legal practice of Ahmed Naqvi Rodriguez LLP as 

counsel. (Id. ¶¶4-5.) On July 5, 2011, three days before Plaintiff’s 

right to sue expired, she filed her Complaint with the Court. (Id.

¶8.) On issuance of the summons and Complaint, Plaintiff had a 120-day 

window in which to effect service. Fed. R. Civ. P. 4(m). Plaintiff’s 

counsel retained a process server to provide service on all 

Defendants.

2 (Rodriguez Cert. ¶11.) This action, Plaintiff’s 

 

1 The facts concerning the actions of Plaintiff’s Counsel are found 

in Plaintiff’s January 23, 2011, Certification to the Court. 

Defendants’ proof of improper service is found in the Defendants’

December 23, 2011, Declaration of Counsel. Unless otherwise noted, 

all facts are uncontested. 

2

Due to the geographical disparity of the parties to this case, 

Plaintiff’s counsel explained that they could not rely on established 

vendors and had to rely on a new and untested service provider to 2Due to the geographical disparity of the parties to this case, 

Plaintiff’s counsel explained that they could not rely on established 

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counsel admits, is the first filed by their firm in the District of 

New Jersey and the first to involve the United States as an interested 

party. (Id. ¶10.)

On December 15, 2011, following the Court’s issuance of a Notice 

of Call for Dismissal, Plaintiff filed affidavits declaring that 

service upon an authorized agent of the Honorable Ray LaHood, the 

DOT, and the FAA had been timely completed on October 25, 2011.

[Docket Items 5 & 6.] Plaintiff’s process server, however, failed 

to return an affidavit of service for filing on the Court’s docket, 

as required by Federal Rule of Civil Procedure 5(d). On December 23, 

2011, Defendants filed the present motion to dismiss, supported by 

a Declaration of Counsel that neither the United States Attorney’s 

Office for the District of New Jersey nor the United States Attorney 

General had been served with the summons or Complaint of this action.

[Docket Item 7, Attachment 2.] On December 28, 2011, Plaintiff 

reportedly learned from their designated process server that service 

had not been delivered on the United States Attorney for the District 

of New Jersey or the United States Attorney General. (Rodriguez Cert.

¶¶ 13-14.) Plaintiff immediately attempted to cure the oversight by 

mailing the summons and Complaint to the un-served offices by 

certified mail. (Id. ¶14.) Defendants dispute this claim,

highlighting that Plaintiff’s submission of the two December 15 

Affidavits of Process indicates Plaintiff’s belief that service was 

 

vendors and had to rely on a new and untested service provider to 

effect service. (Rodriguez Cert. ¶ 11.) 

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complete.

3 Defendants therefore argue that the Court can infer that 

Plaintiff had no intention to serve the additional offices prior to 

Defendants’ motion to dismiss. (Defs.’ Letter Reply Supp. Mot. 

Dismiss ¶5.) The United States Attorney’s Office received the 

summons and Complaint on January 4, 2012, and the United States 

Attorney General received the summons and Complaint on January 10, 

2012. [Docket Item 9, Ex. B.]

III. ANALYSIS

A. Jurisdiction

The Court has jurisdiction over this claim pursuant to its 28 

U.S.C. § 1331 federal question jurisdiction and its 28 U.S.C. §

1343(a)(4) civil rights jurisdiction. The Court has supplemental 

jurisdiction over the claims brought under the New Jersey Law Against 

Discrimination pursuant to 28 U.S.C. § 1367. 

B. Standard of Review

In considering a motion to dismiss for insufficiency of service 

of process (and thus the motion to dismiss for lack of personal 

jurisdiction), the Court must accept as true all well-pleaded 

 

3 Defendants note that Plaintiff’s response to the Notice of Call for 

Dismissal included no indication that Plaintiff felt service was as 

yet incomplete or that further proofs of service were required. 

Defendants further note that in her response, Plaintiff warned that 

“[a]s responsive pleadings have not yet been filed and the time for 

same has expired . . . [we] will shortly be making an application 

to the Court for a judgment on [sic] default . . .” [Docket Item 4, 

¶5.] 

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allegations of the Complaint.4 The Court is also permitted, however,

to refer to the record as necessary to determine the alleged 

insufficiency of service. See Thompson v. Kerr, 555 F.Supp. 1090, 

1093 (S.D. Ohio 1982); see also 5 Charles Alan Wright & Arthur R. 

Miller, Federal Practice and Procedure § 1353 (1969). When a motion 

to dismiss for insufficient service of process is made, the serving 

party bears the burden of proving that proper service was effected. 

See Grand Entm’nt Grp., Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 

488 (3d Cir. 1993); Jumpp v. Jerkins, Civil No. 08-6268, 2010 WL 

715678, at *6 (D.N.J. Mar. 1, 2010); see also 4A Charles Alan Wright 

& Arthur R. Miller, Federal Practice and Procedure § 1083 (3d ed.).

C. Service of Process Requirements

Federal Rule of Civil Procedure 4 governs service of process. 

Service against an agency or officer of the United States is 

specifically governed by Rule 4(i)(2), which dictates that:

[t]o serve a United States agency or corporation, or a 

United States officer or employee sued only in an official 

capacity, a party must serve the United States and also 

send a copy of the summons and of the complaint by registered 

or certified mail to the agency, corporation, officer, or 

employee. 

Fed. R. Civ. P. 4(i)(2). To effect service upon the United States, 

a party must:

(A)(i)deliver a copy of the summons and of the complaint 

 

4

“Before a federal court may exercise personal jurisdiction over a 

defendant, the procedural requirements of service of summons must 

be satisfied.” Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 

U.S. 97, 104 (1987). Thus, an infirmity of service prevents the 

establishment of personal jurisdiction.

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to the United States attorney for the district where the 

action is brought—or to an assistant United States attorney 

or clerical employee whom the United States attorney 

designates in a writing filed with the court clerk—or

(ii)send a copy of each by registered or certified mail 

to the civil-process clerk at the United States attorney’s 

office;

(B) send a copy of each by registered and certified mail 

to the Attorney General of the United States at Washington, 

D.C.; and

(C) if the action challenges an order of a nonparty agency 

or officer of the United States, send a copy of each by 

registered or certified mail to the agency or officer. 

Fed. R. Civ. P. 4(i)(1). Under Rule 4, if a defendant is not served 

within 120 days after the complaint is filed, the court “must dismiss 

the action without prejudice against that defendant or order that 

service be made within a specified time.” Fed. R. Civ. P. 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.

Thus, Rule 4 constitutes a two prong test (1) requiring the court 

to extend the time for service if good cause is shown and separately 

(2) allowing the court the discretion to dismiss or extend the time 

for service absent a showing of good cause. See Petrucelli v. 

Bohringer, 46 F.3d 1298, 1305 (3d Cir. 1995); see also McCurdy v. 

American Bd. of Plastic Surgery, 157 F.3d 191, 196 (3d Cir. 1998). 

These processes are distinct inquiries, and a court cannot find an 

exercise of discretion unwarranted per se based upon the outcome of 

its good cause analysis. See Jumpp, Civil No. 08-6268, 2010 WL 715678, 

at *6 (citing Boley v. Kaymark, 123 F.3d 756, 758-60 (3d Cir. 1997)). 

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D. Analysis

Neither party contests that service to the Honorable Ray LaHood, 

the FAA, and the DOT occurred on October 25, 2011, within the 120 

day time limit. It is further uncontested that service to the United 

States Attorney for the District of New Jersey and the United States 

Attorney General did not occur until January 4, 2012, and January 

10, 2012, respectively, well after the 120 days provided for service 

had elapsed. 

The sole issue before the Court is whether, by a finding of good 

cause or by discretionary exercise, the period for service should 

be extended to remedy the Plaintiff’s insufficient service as to the 

Attorney General and the United States Attorney’s Office, nunc pro 

tunc. 

1. Good Cause

The first question is whether Plaintiff’s delay in effecting 

service occurred for good cause, in which case the Court would be 

required to extend the time for service for an appropriate period. 

The Court finds that Plaintiff’s delays in service were not for good 

cause.

To determine good cause, “the primary focus is on the plaintiff’s 

reasons for not complying with the time limit in the first place.” 

MCI Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d 

Cir. 1995). To show good cause, a plaintiff must be able to show “‘[1] 

good faith on the part of the party seeking an enlargement and [2] 

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some reasonable basis for noncompliance within the time specified 

in the rules.’” Id. (quoting Petrucelli, 46 F.3d at 1312 (Becker, 

J., concurring in part and dissenting in part)). In seeking to 

establish good cause, courts may also consider (1) the reasonableness 

of plaintiff’s efforts to serve, (2) the prejudicial impact that lack 

of timely service has had on the defendant, and (3) whether the 

plaintiff moved for an enlargement of the time to serve. See MCI 

Telecomms. Corp., 71 F.3d at 1097. If the Court does not find good 

cause, it may either dismiss the claim without prejudice or grant 

a discretionary extension of the time for service.

a. Good Faith

Plaintiff accomplished timely service as to the three named 

federal defendants, but not as to the Attorney General or United States 

Attorney. Plaintiff’s counsel admitted that this suit was both their 

first appearance in the Federal District of New Jersey and their first

involving the United States government as a party. (Rodriguez Cert.

¶10.) Plaintiff’s counsel further admitted that they could not use 

one of their regular process servers in this matter and had to utilize 

a process server with whom they had no prior dealings. (Id. ¶11.)

Yet Plaintiff neglected to ensure that the untested process server 

provided timely service and failed to ensure that record of service 

was supplied to this Court in a timely manner.5 The use of a private 

 

5 Plaintiff’s Affidavits of service on the Honorable Ray LaHood, the 

FAA, and DOT were not provided to the Court until nearly two months 

after service was effected and then only because the Court issued 

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process server was altogether unnecessary, as all service could have 

been effected via registered or certified mail. Fed. R. Civ. P. 4(i). 

Plaintiff neglected to pursue the simplest method of service, instead 

opting to rely wholly on the promise of an untested process server. 

Plaintiff’s counsel seemed to be unaware, perhaps due to inexperience, 

of the rudimentary need to serve the Attorney General in Washington 

and the United States Attorney in New Jersey when commencing suit.

But counsel did not neglect to serve the three named defendants in 

a timely manner. 

A plaintiff’s request for an extension of the time for service 

of process can normally be viewed as an indication of good faith and 

an element of good cause, but here Plaintiff could not even make such 

a request as Plaintiff was unaware service had not been effected until 

a month and a half after the 120 day period had expired. See Boley 

v. Kaymark, 123 F.3d 756, 758 (3d Cir. 1997); Connolly v. Mitsui O.S.K. 

Lines (America), Inc., No. 04-CV-5127, 2006 WL 2466848, at *5 (D.N.J. 

Aug. 24, 2006). Plaintiff’s attorneys are advised to treat Rule 4(m) 

“with the respect reserved for a time bomb.” Braxton v. United States,

817 F.2d 238, 241 (3d Cir. 1987) (quoting Siegel, Practice Commentary 

on Amendment of Federal Rule 4 (Eff. Feb. 26, 1983) with Special 

Statute of Limitations Precautions, 96 F.R.D. 88, 103 (1983)). In 

one sense, counsel acted in compliance with the need to serve the 

named defendants, and took immediate steps to serve the United States 

 

a Notice of Call for Dismissal. [Docket Items 5 & 6.]

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Attorney and Attorney General as soon as this Court’s Notice of Call 

for Dismissal brought this shortcoming to counsel’s attention. At 

least counsel attempted to comply and move this case forward. 

b. Reasonable Basis for Noncompliance

It is the responsibility of the plaintiff to ensure the summons 

and complaint are served within the time allowed. Fed. R. Civ. P. 

4(c)(1). The facts before the Court present a scenario of unexplained 

omission on the part of the process server and a lack of oversight 

and diligence by counsel. Within the Third Circuit, such 

inadvertence of counsel does not constitute good cause. See Braxton 

v. United States, 817 F.2d 238, 241 (3d Cir. 1987) (holding that a 

failure to ensure that a dilatory private process server provided 

timely service did not constitute delay for good cause); Lovelace 

v. Acme Mkts., 820 F.2d 81 (3d Cir. 1987) (following the rule of 

Braxton); cf. Consol. Freightways Corp. of Del. v. Larson, 827 F.2d 

916, 920 (3d Cir. 1987) (contrasting a simple clerical error made 

in good faith with Braxton’s conscious failure to ensure service had 

been rendered by a dilatory service provider). To allow the 

inadvertence of attorneys to constitute good cause would be 

inconsistent with the Court’s obligation to ensure that the 

“well-considered requirements” of Rule 4(m) not be “disregarded with 

impunity.” Braxton, 817 F.2d at 241.

Plaintiff’s claim that the process server is responsible for 

the failure to effect timely service speaks to Plaintiff’s counsel’s

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own failure to provide effective oversight. It is Plaintiff’s duty 

to ensure proper service, even when a process server is used. 

Plaintiff made no showing of a sufficient effort to provide service 

before the deadline. Plaintiff further failed to show any compelling 

justifications for why service could not be made. As such, 

Plaintiff’s delay in providing service was not for good cause.

2. Discretionary Exercise

Having found that good cause for the delay in service does not 

exist, the Court must now consider whether to exercise its discretion 

to extend the time for service. 

When considering whether to exercise its discretion and extend 

the time for service, a court may consider in addition to any other 

relevant factors (1) whether the defendant had actual notice of the 

legal action; (2) whether an extension of the time for service would 

prejudice the defendant; (3) whether the statute of limitations on 

the underlying cause of action would expire without an extension;

(4) whether the defendant’s conduct impeded service; and (5) whether 

the plaintiff is represented by counsel. Chiang v. U.S. Small Bus. 

Admin., 331 F.Appx. 113, 116 (3d Cir. 2009). The plaintiff bears the 

burden of demonstrating a sufficient reason as to justify the exercise 

of the court’s discretion. McCurdy v. Am. Bd. of Plastic Surgery,

157 F.3d 191, 196 (3d Cir. 1998) (affirming the District Court’s denial 

of extension where it concluded that the plaintiff had demonstrated 

no basis to justify extension).

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In the case at hand, the relevant considerations are whether 

(1) actual or sufficient notice was provided; (2) whether the statute 

of limitations on the underlying cause of action would expire without 

an extension; and (3) whether the extension of the time for service 

would prejudice the defendant. In light of the circumstances of this 

case, the Court finds that a discretionary extension of the time for 

service is appropriate.

a. Actual or Sufficient Notice

Plaintiff contends that Defendants had actual notice of the legal 

action being brought against them and therefore that a discretionary 

extension would be proper. (Pl.’s Mem. Opp’n Defs.’ Mot. Dismiss, 

11.) In support, Plaintiff points to Defendants’ filing of a motion 

to dismiss for lack of timely service. (Pl.’s Mem. Opp’n Defs.’ Mot.

Dismiss, 11.) Indeed, actual notice to a defendant that an action 

was filed militates against a finding of prejudice caused by untimely 

service. See, e.g., Boley v. Kaymark, 123 F.3d 756, 759 (3d Cir. 

1997); Dominic v. Hess Oil V.I. Corp., 841 F.2d 513, 517 (3d Cir. 

1988). However, for actual notice to weigh against a finding of 

prejudice, the notice must be given during the period for timely 

service.6 Receipt of actual notice after the period for timely 

service has closed is no less prejudicial to the defendant than 

 

6 Actual notice ensures that, despite failure to effect timely 

service, defendant is nonetheless aware of the case against it. See

Boley, 123 F.3d at 759. Establishment of actual notice after the time 

for service has expired is meaningless, since it would not in any 

way reduce the prejudicial impact of the failure to effect service. 

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untimely service itself. According to Defendants, the United States 

Attorney for the District of New Jersey did not receive actual notice 

of this suit until November 30, 2011, about 33 days after the period 

for timely service had lapsed. [Docket Item 7 Attachment 2.] The 

Defendants, however, had actual notice when they were served on 

October 25, 2011, and only the Justice Department’s offices were not 

timely served. 

Had Plaintiff served the United States under Rule 4(i)(1) but 

failed to serve the named parties under Rule 4(i)(2), the Court would 

have been required to grant reasonable time to cure the failure. Fed. 

R. Civ. P. 4(i)(4)(A). Plaintiff requests a discretionary extension 

on the grounds that the inverse — serving agencies and officers of 

the United States but not the United States itself — should also be 

sufficient. However, where the drafters of the Federal Rules of Civil 

Procedure did not see fit to create such an exception, the courts 

have not seen fit to do so. See, e.g., Parham v. Lamar, 1 F.Supp.2d 

1457, 1459 (M.D. Fla. 1998) (holding that it would be inappropriate 

to permit a plaintiff to serve the United States Attorney General 

or the United States Attorney when only the individually named 

defendants had been served within the 120 day period for service); 

Flores v. Secretary of Navy, 159 F.R.D. 472, 473 (S.D. Tex. 1994) 

(declaring that if neither the United States Attorney General nor 

the United States Attorney are served, the provision allowing 

reasonable time to cure defect in service does not apply). On the 

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other hand, while the federal defendants are sued in their official 

capacities, the United States itself is not a named party. Moreover, 

both the United States Attorney’s Office and the Attorney General 

were served months ago, in early January, 2012. 

b. Statute of Limitations

Discretionary extensions of time for service may also be granted 

when the plaintiff’s claim would otherwise become time-barred by the 

expiration of the relevant statute of limitations. Petrucelli v. 

Bohringer, 46 F.3d 1298, 1305 (3d Cir. 1995). In such a circumstance 

dismissal without prejudice would have the same sting as a dismissal 

with prejudice. See, e.g., Jumpp v. Jerkins, Civil No. 08-6268, 2010 

WL 715678, at *11 (D.N.J. Mar. 1, 2010). As Defendants point out, 

the expiration of a statute of limitations does not require the Court 

to extend the time for service, as “the district court may in its 

discretion still dismiss the case, even after considering that the 

statute of limitations has run and the refilling of the action is 

barred.” Petrucelli, 46 F.3d at 1306. Furthermore, the Third 

Circuit has held that “‘[h]alf-hearted’ efforts by counsel to effect 

service . . . do not necessarily excuse a delay, even when dismissal 

results in the plaintiff’s case being time-barred due to the fact 

that the statute of limitations on the plaintiff’s cause of action 

has run.” Lovelace, 820 F.2d at 84. 

Defendants note in their Letter Reply in Support of their Motion 

to Dismiss that under prior precedents the Court would be justified 

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in “view[ing] that [statute of limitations] factor in a less favorable 

light to plaintiff than might otherwise be the case” given that 

Plaintiff filed its action near the end of the statute of limitations 

period. (Defs.’ Letter Reply Supp. Mot. Dismiss 5-6.) See McCurdy,

157 F.3d at 196. Plaintiff’s “Notice of Right to Sue,” however, was 

valid for only 90 days. Even if Plaintiff had filed her suit the moment 

she received her notice she would have been outside her statute of 

limitations at this juncture. The Court therefore declines to 

consider this factor in its analysis. Thus, the Court considers the 

fact that Plaintiff’s claim would be time-barred absent the Court’s 

exercise of discretion as weighing on the side of granting the 

extension of time. 

c. Prejudice

Despite Plaintiff’s procedural failings, Defendants show no 

prejudice to support dismissal. Defendants fail to make any 

allegations of prejudice created by Plaintiff’s actions. 

Plaintiff’s errors, though significant, only delayed initiation of 

the case by two months. Defendants have indicated no ways in which 

these two months have impaired its ability to defend on the merits.

The fact that Defendants would have to defend against a lawsuit that 

would otherwise be dismissed and time-barred by a statute of 

limitations is not sufficient by itself to establish prejudice.

“[P]rejudice ‘involves impairment of defendant’s ability to defend 

on the merits, rather than foregoing such a procedural or technical 

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advantage.’” Boley v. Kaymark, 123 F.3d 756, 759 (3d Cir. 1997) 

(quoting Nat’l Union Fire Ins. Co. v. Barney Assoc., 130 F.R.D. 291, 

294 (S.D.N.Y. 1990)). 

d. Summation

The indifference to the rules of procedure shown by Plaintiff 

weighs against discretionary exercise. However, as the Court has 

previously stated, the expiration of Plaintiff’s notice to sue weighs 

in favor of the Court extending the time for service. Additionally, 

Defendants have made no claim of prejudice, and without such a showing

the Court can find no compelling reason against granting an extension. 

Rules must be enforced to ensure compliance. However, the 

Federal Rules of Civil Procedure do not anticipate rigid enforcement. 

Rule 4(m) specifically allows the Court to extend the time for service 

at its discretion when good cause does not exist. In such exercise 

of discretion, it is important to balance adherence to procedure with 

the importance of equitable outcomes. The Federal Rules of Civil 

Procedure are to be applied in such a way as to promote justice. See

Fed. R. Civ. P. 1. Yet the rules also must be applied in such a way 

as to promote speedy and efficient determinations of an outcome. Id. 

Justice requires cases reach the Courts in a timely manner so that 

the defendant is not forced to defend against stale claims, yet justice 

also requires that Courts strive to resolve cases on their merits 

whenever possible. Allowing this case to proceed would not create 

so large or unfair a burden on Defendants as to justify denying 

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Plaintiff the chance for her case to proceed at this stage. 

This decision should not by taken as endorsement of the actions 

of Plaintiff’s counsel, who have displayed substantial indifference 

to, or ignorance of, their obligations. Absent a showing of 

prejudice, though, the Court can see no compelling reasons not to 

exercise its discretion and to thus deny Plaintiff her day in court. 

In the absence of compelling arguments in favor of either side, the 

Court must return to its default preference, which is ensuring access 

to justice.7 The preference of this Court must always favor allowing 

cases to reach their merits if possible, and absent compelling reasons 

it now chooses to exercise its discretion and extend the period for 

service.

Although the case is not being dismissed for untimely service, 

the Plaintiff’s counsel’s indifference and delay will not be without 

consequence. The discretion of the Court to impose conditions upon 

the vacating of default is well established. See Feliciano v. Reliant 

Tooling Co., Ltd., 691 F.2d 653, 657 (3d Cir. 1982) (recognizing that 

prejudice suffered by a non-defaulting party can be rectified through 

the imposition of terms and conditions); Wokan v. Alladin Int’l, Inc., 

485 F.2d 1232 (3d Cir. 1973). In an effort to accelerate the case 

 

7 In Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 373 (1966), Justice 

Black wrote “The basic purpose of the Federal Rules is to administer 

justice through fair trials, not through summary dismissals as 

necessary as they may be on occasion . . . If rules of procedure work 

as they should in an honest and fair judicial system, they not only 

permit, but should as nearly as possible guarantee that bona fide 

complaints be carried to an adjudication on their merits.”

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and cure the prejudice of delay and needless motion practice Plaintiff 

has caused, the Court will accelerate Plaintiff’s early disclosure 

obligations. Normally, under Rule 26(a)(1), Fed. R. Civ. P., the 

parties would wait to exchange their early disclosure materials until 

after the pleadings have closed. In this instance, however, 

Plaintiff will be required to make all her early disclosures at this 

time in an effort to explain her case on the evidence on which it 

rests. 

Accordingly, and as a condition of granting Plaintiff relief 

from the consequences of her failure to make timely service, and in 

an effort to achieve Rule 1’s promise of the speedy and efficient 

resolution of civil cases, Plaintiff shall serve Defendant’s counsel 

with all records, documents, and information required in Rule 

26(a)(1), within fourteen (14) days hereof. Defendant’s reciprocal 

obligation may await the normal timing. 

IV. CONCLUSION

For the reasons expressed in this Opinion, the Court denies

Defendants’ motion to dismiss under Federal Rules of Civil Procedure 

Rule 12(b)(2) for lack of personal jurisdiction, Rule 12(b)(5) for 

insufficient service of process, and Rule 4(m) for exceeding the time 

limit for service. As a condition for relieving Plaintiff from the 

consequences of her untimely service of process, the Court will 

require Plaintiff to serve all required early disclosure records, 

documents, and information under Federal Rule of Civil Procedure 

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26(a)(1) within 14 days of the entry of the accompanying order. The 

Court further grants Defendants’ request for a 60-day period from 

the entry of the attached Order to prepare responsive pleadings or 

motions, so as to afford Defendants the full period provided under 

Fed. R. Civ. P. 12(a)(2). The accompanying Order will be entered. 

 June 8, 2012 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

Chief U.S. District Judge

Case 1:11-cv-03972-JBS-AMD Document 12 Filed 06/08/12 Page 20 of 20 PageID: 96