Federal Wrongful Death Suit Service – a Lawyer’s Extension (FRCP 6)
In a §1983 civil rights wrongful death suit, Avery T. “Sandy” Waterman, Jr., Esq. recently survived a federal court challenge to 755 days elapsing from filing to service of the pro se complaint. One unsuccessful defense line of attack was that the clerk’s multiple extensions were not granted within the original time periods for service. Webb v. Stevens, No. 5:05-CV-33-BO(1) Decision and Order (Mar. 17, 2008) aff’d Order (May 22, 2008),2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008).
Fed. R. Civ. P. Rule 4(m) is not subject to Fed. R. Civ. P. 6(b). Specifically, Rule 6(b) does not superimpose onto Rule 4(m) the ostensible requirement of moving for an extension prior to expiration of the 120-day time period. That would be contrary the plain clear language of Rule 4(m) and Rule 6(b)(2). It also ignores that the Court can act “on its own initiative” under Rule 4(m).
Rule 4(m), which pertains solely to service, provides in pertinent part: “If service is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative [shall ‘dismiss’ or ‘extend’].” Thus, Rule 4(m) explicitly: (1) is wholly self-enabling, does not reference Rule 6(b) and is not dependent upon it; (2) is triggered if and when the time already has expired without service, i.e., must not be invoked prior to expiration of the time; and (3) always is subject to the Court acting sua sponte. Per 1993 Amendment, a Rule 4(m) extension may be for “good cause” or no good cause.
Conversely, Rule 6(b) provides for general enlargement of time since, unlike Rule 4(m), most Rules with time periods do not contain their own provisions for enlargement. Rule 6(b) allows enlargement: (1) within court discretion prior to expiration of the time period; and, significantly, (2) for “excusable neglect” even after expiration of the time period.
Hence specific Rule 4(m) and general Rule 6(b) both provide for enlargement, yet have difference structure, timing and standards. Although Rule 6(b) may apply generally to service under Rule 4 – just as it does to other Rules – it does not rewrite (eviscerate) Rule 4(m), which since its 1993 Amendment is a much more liberal standard for enlargement of time for service.
Mendez v. Elliot, 45 F.3d 75 (4th Cir. 1995) recognized Rule 4(m) and Rule 6(b) as providing distinct extensions, though it did occasionally refer to both in the same sentence (thereby fostering Defendant’s misstatement). For example, Mendez refers separately to “Rule 6(b) extensions,” without any reference to Rule 4(m). See, e.g., 45 F.3d at 79. See also, id. at 77 (“an extension of time under Federal Rule of Civil Procedure 6(b)”). Mendez first quoted the aforesaid time-dependent two-part standard of Rule 6(b)(1) and (2); and then incorrectly noted that Rule 4(m) extensions could be granted only for “good cause,” regardless the timing. Id. “Whether the court acts before or after the deadline for service has passed, however, the court may only grant the extension for good cause. See, Fed. R. Civ. P. 4(m).” Id (emphasis added). It was only in this context that Mendez incorrectly pronounced further that plaintiff “failed to satisfy Rules 4(m) and 6(b) by failing to establish both good cause for lack of service [under Rule 4(m)] and excusable neglect for not filing the motion to extend service before the expiration of the 120-day period [under Rule 6(b)]. Id. Therefore, a “Rule 4(m) extension” simply is not subject to a so-called “timely motion under Rule 6(b)” – there really being no such thing as an “untimely” Rule 6(b) motion anyway. See, Rule 6(b)(2).
United States v. Gulf Ins. Co., 225 F.R.D. 526 (E.D. Va. 2005) exemplifies this delineation of Mendez. Gulf first applied Rule 4(m) analysis and found no “good cause” for granting an extension under it. Id. at 527-528. Notably, Rule 4(m) analysis appropriately did not turn on plaintiff having moved for extension after expiration of the 120-day time period – or, in the vernacular of Defendant at bar, on no “timely motion by plaintiff under Rule 6(b)”. Gulf then separately analyzed plaintiff’s motion for extension under Rule 6(b), noting the different time-based standards under Rule 6(b)(1) and Rule 6(b)(2). Gulf found that because plaintiff’s motion was filed after expiration of the time period, for Rule 6(b) purposes it was governed by Rule 6(b)(2) and its more rigorous “excusable neglect” test. Since “excusable neglect” under Rule 6(b)(2) approximates “good cause” under Rule 4(m), Gulf concluded that plaintiff also failed alternatively to qualify for “equitable” relief under Rule 6(b). Id. at 528-529. Again, plaintiffs simply are not required to file any motion under Rule 6(b) as a pre-condition to extension under Rule 4(m), let alone one within the initial 120-day period.
