### 1997 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s

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8-25-1997



# B ole y v . K a y m a r k

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t

96-3573



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" Bo ley v . K a y m a rk " (1997). 1997 D e cisio n s

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. e du/thir dc ir c uit_1997/205Filed August 25, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96

- 3573

WAYNE E. BOLEY,

Appellant,

v.

DALE KAYMARK,

On Appeal From the United States District Court

For the Western District of Pennsylvania

(D.C. N o. 95

- cv

- 01018)

Argued: June 3, 1997

Before: BECKER, SCIRICA, Circuit Judges, and

SCHWARZER,* Senior District Judge.

(Filed August 25, 1997)

ANDREW J. CONNER, ESQUIRE

(ARGUED)

Conner & Riley

17 West Tenth Street

Erie, PA 16501

Attorney for Appellant

Wayne E. Boley

_________________________________________________________________

*Honorable William W Schwarzer, Senior United States District Judge for

the Northern District of California, sitt ing by designation.

MICHAEL A. CHAGARES, ESQUIRE

(ARGUED)

MICHAEL C. TURZAI, ESQUIRE

Houston Harbaugh, P.C.

Twelfth Floor

Two Chatham Center

Pittsburgh, PA 15219

Attorneys for Appelle e

Dale KaymarkOPINION OF THE COURT

SCHWARZER, Senior District Judge.

The question before us is whether the district court

abused its discretion in denying plaintiff's motion under

Fed. R. Civ. P. 4(m) for additional time to serve proces s.

PROCEDURAL HISTORY

On July 6, 1993, defendant Dale Kaymark allegedly

injured plaintiff Wayne E. Boley in an automobile collision

in Beaver County, Pennsylvania. Almost two years later, on

July 3, 1995, Boley filed a complaint in the United Stat es

District Court for the Western District of Pennsylvania.1

Two days after filing the complaint Boley attempted to serve

Kaymark by sending a copy of the complaint and summons

to his home address via certified mail. The mailing did not

include the fo rms necessary for Kaymark to waive personal

service under Fed. R. Civ. P. 4(d). Absent a waiver, the

Federal Rules require either personal service or, pursuant

to Fed. R. Civ. P. 4(e)(1), service that complies with state law.2

Boley, however, made no f urther attempt to perfect service

within the 120

- day period required by Fed. R. Civ. P. 4(m).

_________________________________________________________________

1. Pennsylvania's statutory period for bringing a personal injury action

is

two years. 42 Pa. Cons. Stat. S 5524(2).

2. Boley's attempted service by mail was insufficient under Pennsylvania

law. See Pa. R. Civ. P. 400, 403.

2

On February 22, 1996, Kaymark moved to dismiss

Boley's complaint under Fe d. R. Civ. P. 12(b)(5) for failure

to serve process within 120 days.3 On March 4, 1996, Boley

moved the court for an extension of time to serve pursuant

to Fed. R. Civ. P. 4(m). The district court denied Boley's

motion to extend time and granted Kaymar k's motion to

dismiss the complaint on August 29, 1996. Boley timely

filed this appeal.4 The district court had jurisdiction under

28 U.S.C. S 1332, and we have appellate jurisdiction

pursuant to 28 U.S.C. S 1291.

DISCUSSION

We review the distric t court's denial of a Rule 4(m)

motion to extend time to serve for abuse of discretion.

Ayers v. Jacobs & Crumplar, P.A., 99 F.3d 565, 568 (3d Cir.

1996). The determination whether to extend time involves atwo

- step inquiry. Petrucelli v. Bohringer & R atzinger, 46

F.3d 1298, 1305 (3d Cir. 1995). The district courtfirst

determines whether good cause exists for a plaintiff's

failure to effect timely service. If good cause exists, the

extension must be granted. Id.; see also , Fed. R. Civ. P.

4(m). If good cause does not exist, the district court must

consider whether to grant a discretionary extension of time.

MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086,

1098 (3d Cir. 1995), cert. denied, 117 S. Ct. 64 (1996).

_________________________ ________________________________________

3. In response to Kaymark's motion to dismiss, Boley twice attempted

service by mailing to Kaymark's residence additional copies of the

complaint and summons, along with the waiver form. Apart from being

untim ely, the mailings did not effect service because Kaymark did not

execute and return the waiver.

4. On September 9, 1996, Boley filed a motion for relief from judgment

under Fed. R. Civ. P. 60(b)(1) and (6). On October 7, Kaymark filed its

opposition. Meanwhile, on September 26, Boley filed his notice of appeal.

The district court did not rule on the motion. In his brief, Boley has

appended a copy of his motion together with the attached exhibits,

which were not a part of the record before the distr ict court when it

ruled on the motion to dismiss. We grant Kaymark's motion to strike

those portions of Boley's motion that were not before the district court.

See Fed. R. App. P. 10(a); Petrucelli v. Bohringer and Ratzinger, 46 F.3d

1298, 1307 n.12 (3 d Cir. 1995); Martin v. Merrell Dow Pharmaceuticals,

Inc., 851 F.2d 703, 706 n.2 (3d Cir. 1988).

3

A. Mandatory Extension for Good Cause

The district court found that good cause had not been

shown for Boley's failure to effect timely service. In

determining whether good cause exists, a court's "primary

focus is on the plaintiff's reasons for not complying with

the time limit in the first place." Id. at 1097. Nothing in the

record before the district court j ustified Boley's ineffective

attempts at service and his failure to make a timely motion

for an extension of time; as in MCI, the district court was

"presented with no explanations as to what, if any,

circumstances constitute sufficient `good cause' to excuse

[plaintiff 's] apparent lack of diligence." Id. The district court

therefore did not abuse its discretion in finding that good

cause had not been shown.

B. Discretion to Extend Time for Service

The district court acknowledged that even in the absence

of good cause, Rule 4(m) gives it discretion to extend the

time for service. See Petrucelli, 46 F.3d at 1307. It said:The Court notes that even in the absence of good cause

we may either dismiss the case without prejudice or

extend time for service. The Court declines to grant an

extension because of Boley's inexcusable delays and

the prejudice such an extension would impose on

Kaymark.

The court's summary statement in effect recapitulates its

reasons for finding lack of good cause. That finding was

proper for the reasons that (1) Boley had offered no

explanation for his delay in making service, and (2) the

running of the statute of limitations is not a proper

consideration in determin ing whether good cause exists.

Petrocelli, 46 F.3d at 1306. It does not follow, however, that

the finding reflects a proper analysis under the

discretionary step of Rule 4(m).

That Boley's delays were inexcusable, of course, merely

reiterates the su bstance of the finding of no good cause and

standing alone does not reflect an exercise of the discretion

Rule 4(m) gives the court to extend time to serve in the

absence of good cause. See MCI, 71 F.3d at 1098

- 99

(granting a discretionary extension on a record devoid of a

4

showing by plaintiff of good cause). Critical to that finding

was Boley's lack of explanation. See id. at 1097 ("absence

of prejudice alone can never constitute good cause"). In its

discr etionary analysis, however, the court relied on its

finding of prejudice to Kaymark, premised on the fact that,

were an extension of time to effect service given to Boley,

Kaymark would lose the benefit of the running of the

statute of limitations.

In drafting the amendment of Rule 4(m), the Advisory

Committee plainly had in mind, as its Notes state,

"authoriz[ing] the court to relieve a plaintiff of the

consequences of an application of this subdivision even if

there is no good cause shown. . . . Relief may be justified,

for example, if the applicable statute of limitations would bar

the refiled action . . . ." Fed. R. Civ. P. 4(m) Adv. Comm.

Notes (1993) (emphasis added). Interpreting this rule, under

which the court may extend the time for service to avoid

the bar of limitations, to authorize the court to refuse to

extend it so the defendant may gain the benefit of that bar

appears to us to be inconsistent with its purpose. See, e.g.,

Goodstein v. Bombardier Capital, Inc., 167 F.R.D. 662 , 666

- 67 (D. Vt. 1996) (extending time in part to prevent

plaintiff 's case from being barred). We are aware of no

decisions refusing to grant an extension to serve underRule 4(m) solely on the ground that denying the defendant

the benefit of the ru nning of the statute of limitations

amounts to cognizable prejudice.

That is not to say that the failure to make timely service

may not prejudice a defendant. Delay may damage a

defendant's ability to defend on the merits. See, e.g., Gowan

v. Teamst ers Union (237), 170 F.R.D. 356, 360 (S.D.N.Y.

1997) (witness might not be available to testify and

evidence was probably destroyed); Shaw v. Rolex Watch

U.S.A. Inc., 745 F. Supp. 982, 988 (S.D.N.Y. 1990) (without

ruling on prejudice, court noted that named defendant died

in the interim). In other contexts, as well, findings of

prejudice have been limited to circumstances in which

delay impaired a defendant's ability to defend. See, e.g.,

Nelson v. County of Allegheny, 60 F.3d 1010, 1014

- 15 (3d

Cir . 1995) (under Rule 15(c), prejudice depended on

whether defendant for lack of notice would have to

5

assemble evidence when case was already stale) cert.

denied, 116 S. Ct. 1266 (1996); Feliciano v. Reliant Tool ing

Co., 691 F.2d 653, 657 (3d Cir. 1982) (under Rule 60(b), no

prejudice absent loss of available evidence or "increased

potential for fraud or collusion"). Moreover, actual notice to

a defendant that an action was filed militates against a

finding o f prejudice. See, e.g., Dominic v. Hess Oil V.I. Corp.,

841 F.2d 513, 517 (3d Cir. 1988) (no prejudice to defendant

under Rule 4(j) where defendant had actual notice of

plaintiff 's claim and facts on which it was grounded); see

also, Benjamin v. Grosn ick, 999 F.2d 590, 592 (1st Cir.

1993) (no prejudice under Rule 4(j) where defendant had

actual notice of lawsuit); Spencer v. Steinman, ___ F. Supp.

___, 1997 WL 359028, *3 (E.D. Pa. June 24, 1997) (noting

that actual notice "is crucial" to determinin g prejudice to

the defendant); Myers v. Secretary of the Dep't. of the

Treasury, ___ F.R.D. at ___, 1997 WL 306839 at *5 (E.D.N.Y

June 4, 1997) (rejecting prejudice when evidence showed

defendant had been involved in settling merits claim). Here,

it i s not disputed that Kaymark was sent a copy of the

complaint only two days after it was filed, and he makes no

claim of lack of actual notice.

District courts have consistently interpreted Rule 4(m) in

the same way, treating the running of the statut e of

limitations as a factor favoring the plaintiff and not as a

basis for potential prejudice to the defendant. See, e.g.,

Mason Tenders Dist. Council Pension Fund v. Messara, 1997

WL 221200 *4

- 5 (S.D.N.Y. April 1, 1997); Rose v. Forbes

Metro. Hosp., 72 Fair Empl. Prac. Cas. (BNA) 549, 1996 WL

752530, *2

- 3 (W.D. Pa. Oct. 18, 1996); National Union FireIns. Co. v. Forman 635 Joint Venture, 1996 WL 272074, *3

(S.D.N.Y. May 21, 1996); Binicewicz v. General Elec. Co.,

1995 WL 628425, *2

- 3 (N.D. Ill. O ct. 25, 1995); Pickney v.

Sheraton Soc'y Hill, 1994 WL 376862, *3 (E.D. Pa. July 15,

1994); Williams v. United Parcel Serv., 1991 WL 264651, *2

(N.D. Ill. Dec. 9, 1991).

We conclude that while the running of the statute of

limitations is a factor su pporting the discretionary granting

of an extension of time to make service under Rule 4(m), it

is not a factor that standing alone supports a finding of

prejudice to the defendant. As stated by one district court,

6

prejudice "involves impairment of defendant's ability to

defend on the merits, rather than foregoing such a

procedural or technical advantage." National Union Fire Ins.

Co. v. Barney Assoc., 130 F.R.D. 291, 294 (S.D.N.Y. 1990).

The district cou rt, of course, retains discretion to refuse

to extend time, even if the statute of limitations has run.

See Petrucelli, 46 F.3d at 1306 ("a district court may in its

discretion still dismiss the case, even after considering

that . . . the refiling of a n action is barred"). See, e.g.,

Adams v. Allied Signal Gen. Aviation Avionics, 74 F.3d 882,

887

- 88 (8th Cir. 1996) (refusing a discretionary extension of

time to serve despite the running of the statute of

limitations). In this case, however, the cour t's exercise of its

discretion was premised on an erroneous finding of

prejudice.

Because we do not know what choice the district court

would have made had it correctly considered the relevant

factors bearing on the exercise of discretion, see Unite d

States v. Monaco, 23 F.3d 793, 799 (3d Cir. 1994); Lieb v.

Topstone Indus. Inc., 788 F.2d 151, 153 (3d Cir. 1986), we

VACATE the order and REMAND for further proceedings

consistent with this opinion. On remand the district court

may find it appropri ate to augment the record on the

parties' motion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

7