Monday, September 28, 2009

U.S. Marshal's Failure To Serve Complaint Is Good Cause To Extend Service Date In Eleventh Circuit

In Rance v. Rocksolid Granit USA, Inc. (09-11026), the Eleventh Circuit addressed an issue of first impression in the Circuit and reversed the district cout's dismissal of the plaintiffs lawsuit because the "district court clerk and the U.S. Marshal failed to prepare the summons and complaint and serve Rocksolid, as expressly directed by the district court and required by law."

The problem is that "on July 28, 2008, the district court granted Rance’s 'Amended Application to Proceed Without Payment of Fees and Affidavit,' in which it specified the following: '[t]he Clerk of Court is instructed to prepare the summons and copies of the complaint and same shall be served by the U.S. Marshal. The U.S. Marshal shall file a return of service once service is completed'.”

The court noted "We have not yet articulated the proper standard of review for a sua sponte dismissal pursuant to Federal Rule of Civil Procedure 4(m).  'However, we review for abuse of discretion a court’s dismissal without prejudice of a plaintiff’s complaint for failure to timely serve a defendant under Rule 4(m)'...Accordingly, an abuse of discretion is the proper standard of review here as well."

Our sister circuits have held that a plaintiff has shown “good cause” for purposes of a dismissal pursuant to Rule 4(m) when a United States Marshal has failed to properly serve process through no fault of the plaintiff...We agree with the well-reasoned decisions of our sister circuits. Relying on Fowler, we hold that the failure of the United States Marshal to effectuate service on behalf of an in forma pauperis plaintiff through no fault of that plaintiff constitutes “good cause” for the plaintiff’s failure to effect timely service within the meaning of Rule 4(m).


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