Colby v. Town of Henniker, et al. CV-99-512-B 2/15/01

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Floyd Colby

v. Civil No. 99-512-B Opinion No. 2001DNH038 Town of Henniker, et al.

MEMORANDUM AND ORDER

Floyd Colby brings this pro se action against William R.

Belanger, Joseph Damour, Edward J. Wojnowski, and the Town of

Henniker (collectively, the “Henniker Defendants”), and Advanced

Recycling and its President, Steven Cohen (collectively, the

“Cohen Defendants”). This court granted Colby two extensions of

time to serve process on the defendants. Colby ultimately

attempted to do s o , but only after those court-ordered deadlines

had lapsed. The Cohen Defendants now move, pursuant to Fed. R.

Civ. P. 12(b)(5), to dismiss this case for failure to serve

process in a timely manner and for insufficient service of

process. The Henniker Defendants also move to dismiss this case

for failure to serve process in a timely manner. Because I find both that Colby cannot establish “good cause” for serving process

after the court-ordered deadline and that he has not demonstrated

sufficient grounds for a discretionary extension of time, I grant

the defendants’ motions and dismiss the complaint without

prejudice.

I. BACKGROUND

Colby initiated this suit on October 2 8 , 1999. He alleges

that the defendants seized his property without compensation,

thereby violating his rights under the Constitution and various

federal statutes.

On January 5 , 2000, Magistrate Judge James R. Muirhead

concluded that the court had subject matter jurisdiction to

consider Colby’s claim and ordered Colby to complete service of

process on the defendants within 120 days following the issuance

of the summonses against the defendants. The court issued the

summonses on February 2 , 2000.

In an order dated June 6, 2000, the clerk’s office notified

Colby that he had until June 2 6 , 2000 to either: (1) submit

returns of service; or (2) file a motion to extend time in which

-2- to serve process. Failure to do s o , the clerk’s office informed

him, would result in his case being dismissed without prejudice.

Colby subsequently attempted to serve the defendants by sending

them a copy of the complaint and summons via certified mail.

In a margin order dated September 1 1 , 2000, I concluded that

Colby had failed to properly serve process on the defendants

because neither the Federal Rules of Civil Procedure nor

Magistrate Judge Muirhead’s prior order authorized service by

mail. Nevertheless, I denied the defendants’ motions to dismiss

for insufficiency of process and granted Colby an additional 30

days to complete service on the defendants.

On October 2 7 , 2000, Magistrate Judge Muirhead granted

Colby’s motion for an enlargement of time in which to complete

service. Magistrate Judge Muirhead ordered Colby to serve the

defendants no later than November 2 2 , 2000.

At a time not indicated in the record, Colby contacted the

Merrimack County Sheriff’s Office to effectuate service of

process on the Henniker Defendants. The Sheriff’s Office told

him that they probably would not be able serve process on the

Henniker Defendants prior to the November 2 2 , 2000 deadline.

-3- On November 2 2 , 2000, Colby attempted to serve process on

the Cohen Defendants by delivering a copy of the complaint and

summons to their counsel, Shaheen and Gordon, P.A. Counsel

refused to accept service on behalf of their clients because they

had no authorization to accept service on their behalf.

On November 2 2 , 2000, Colby moved for an enlargement of time

to December 1 , 2000 to complete service of process. On November

2 8 , 2000, the Rockingham County Sheriff’s Office personally

served defendant Wojnowski with a copy of the complaint and

summons. On November 29th, the Merrimack County Sheriff’s Office

left copies of the complaint and summons for defendants Cohen and

Advanced Recycling with Jane Cohen, an employee of Advanced

Recycling. On November 30th, the Merrimack County Sheriff’s

Office left copies of the complaint and summons at the abodes of

Belanger and Damour (one copy for him as an individual defendant

and one on behalf of the Town of Henniker).

On January 8 , 2001, Magistrate Judge Muirhead denied Colby’s

motion by margin order, noting that Colby had attempted to serve

process on the last possible day and that he had already been

given two extensions to complete service.

-4- II. DISCUSSION

The parties agree that process was not served until after

the November 2 2 , 2000 deadline imposed by Magistrate Judge

Muirhead. The defendants move to dismiss this case with

prejudice for untimely service of process. In response, Colby

asks me to exercise my discretion and allow this litigation to

move forward. Because I conclude that Colby cannot demonstrate

“good cause” for his failure to serve process on the defendants

in a timely manner and I decide that no discretionary extension

of time is warranted, I grant the defendants’ motions and dismiss

the complaint without prejudice.

A. Time Limits on Service of Process

Federal Rule of Civil Procedure 4 ( m ) , as amended in 1993,

provides, in relevant part, as follows:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

-5- The plain language of Rule 4(m) provides that if a plaintiff

shows good cause for failure to file service within the specified

time, I must extend the time for service. See Panaras v . Liquid

Carbonic Indus. Corp.,

, 340 (7th Cir. 1996);

Petrucelli v . Bohringer & Ratzinger, GMBH,

(3d

Cir. 1995). I also have discretion to grant a plaintiff

additional time to complete service of process even if he cannot

satisfy the “good cause” standard. See De Tie v . Orange County,

, 1111 n.5 (9th Cir. 1998); Panaras, 94 F.3d at 340-

4 1 ; Thompson v . Brown,

0 , 21 (5th Cir. 1996); Adams v .

AlliedSignal Gen. Aviation Avionics,

, 887 (8th Cir.

1996); Espinoza v . United States,

(10th Cir.

1995); Petrucelli,

; but see Mendez v . Elliot,

5 , 78-79 (4th Cir. 1995) (holding that only a showing of

good cause warrants an extension).

Accordingly, I first determine whether Colby has

demonstrated that good cause exists for an extension of time.

See Petrucelli,

. If he cannot satisfy the good

cause standard, I will then determine whether other factors are

present which would warrant an extension.

-6- 1. Good Cause

Whether good cause exists is a fact-specific question which

entails a review o f , among other factors: (1) the reason for the

delay in service; (2) whether the defendants were prejudiced by

the delay; and (3) whether the delay represents an affront to the

court’s control over its own docket. See United States v . Ayer,

8 1 , 885 (1st Cir. 1988) (interpreting “good cause”

under Rule 4(j)); see also Benjamin v . Grosnick,

(1st Cir. 1993) (same).

Colby asserts that he failed to serve process on the

Henniker Defendants prior to the November 2 2 , 2000 deadline

because the Merrimack County Sheriff’s Office told him that it

would be unable to serve the Henniker Defendants prior to that

deadline. He also claims that he failed to serve process on the

Cohen Defendants prior to the deadline because he thought that

their counsel could accept service of process on their behalf.

Neither assertion qualifies as good cause.

First, Colby offers no explanation for why he waited until

the eve of the court-ordered deadline to attempt to serve process

on the defendants. See De-La-Cruz-Arroyo v . Comm’r of Social

Security, N o . 97-2378,

, *1 (1st Cir. May 2 7 ,

-7- 1998) (finding the lack of explanation for plaintiff’s failure to

serve process within nine months to be dispositive); Cox v .

Sandia Corp.,

(10th Cir. 1991). Colby could

have avoided his current predicament by simply attempting to

serve process sooner, rather than waiting almost nine months to

do s o . See Cox,

. While Colby’s initial

unfamiliarity with the intricacies of service of process was

understandable given his pro se status, his subsequent lack of

diligence in attempting to serve process weighs strongly against

a finding of good cause. See Resolution Trust Corp. v . Starkey,

(5th Cir. 1995) (“one is required to be

diligent in serving process . . . before good cause will be

found”).

Second, the fact that the defendants apparently: (1) had

actual notice of this suit; and (2) were not prejudiced in the

preparation of their defenses, does not compel a finding of good

cause. See Precision Etchings & Findings, Inc. v . LGP Gem, Ltd.,

1 , 24 (1st Cir. 1992).

Third, this court generously granted Colby two extensions of

time, giving him over nine months to complete service of process.

Colby’s pro se status alone does not compel me to keep this case

-8- on the docket forever. See Eagle Eye Fishing Corp. v . United

States Dep’t of Commerce,

(1st Cir. 1994);

Barrett v . City of Allentown,

6 , 49 (E.D. Pa. 1993)

(“Plaintiffs’ pro se status does not constitute good cause,”

particularly in light of the fact that the court advised the

plaintiffs that failure to serve process in a timely fashion

would result in dismissal). After reviewing the record, I

conclude that Colby fails to demonstrate good cause for his

failure to serve process on the defendants within the allotted

time.

2. Discretionary Extension

In deciding whether to grant Colby an additional permissive

extension, I consider, among other factors, whether: (1) the

applicable statutes of limitations would bar any refiling of the

action; and (2) the plaintiff substantially complied with the

requirements of Rule 4 . See Petrucelli,

; LGP

Gem, Ltd.,

4 .

Although I noted in a prior margin order that the statute of

limitations may have run on Colby’s claims, his failure to

diligently serve process on the defendants despite receiving two

-9- extensions of the deadline and a warning that his claims might be

barred by the statute of limitations causes me to weigh this

factor in a light less favorable to Colby. See McCurdy v . Am.

Bd. of Plastic Surgery,

(3d Cir. 1998) (quoting

district court opinion with approval); see also Puleio v . Vose,

(1st Cir. 1987) (“The law ministers to the

vigilant not to those who sleep upon perceptible rights.”).

Further, I cannot conclude that Colby substantially complied with

Rule 4 because he failed to complete service within the deadline

established by the court despite having received two extensions.

While it is preferable in the interests of justice for cases

to be decided on their merits rather than on procedural grounds,

see Medeiros v . United States,

(1st Cir. 1980)

(noting “the strong policy favoring disposition of cases on the

merits”) (citation omitted), justice “also requires that the

merits of a particular dispute be placed before the court in a

timely fashion so that the defendant is not forced to defend

against stale claims.” McCurdy,

(affirming

district court’s denial of discretionary extension of time where

statute of limitations had r u n ) ; see Fed. R. Civ. P. 1 (“These

rules . . . shall be construed and administered to secure the

-10- just, speedy, and inexpensive determination of every action.”)

(emphasis added). Here, Colby failed to diligently attempt to

serve the complaint within the deadlines established by the

court. Accordingly, I conclude that Colby does not warrant a

discretionary extension of time to serve process on the

defendants.

3. Dismissal Without Prejudice

Both the Henniker Defendants and the Cohen Defendants ask

that I dismiss Colby’s complaint with prejudice. Rule 4 ( m ) ,

however, refers only to dismissal without prejudice and does not

by itself allow for dismissal with prejudice. See Bann v . Ingram

Micro, Inc.,

(5th Cir. 1997). The defendants

have not stated why a dismissal here should be with prejudice,

nor have they invoked any other rule allowing dismissal with

prejudice. Cf.

(discussing Fed. R. Civ. P. 16(f));

O’Rourke Bros. Inc. v . Nesbitt Burns, Inc.,

(7th Cir. 2000) (“In certain circumstances, a plaintiff’s

dereliction in not obtaining service may lead beyond Rule 4 and

head off into territory covered by Rule 41(b).”).

-11- The First Circuit has expressed a general preference for

dismissal without prejudice so that claims can be refiled and

evaluated on their merits. See Medeiros,

. Of

course, if the statutes of limitations on Colby’s claims have

run, there is no practical difference between a dismissal with

prejudice and a dismissal without prejudice. See Conover v .

Lein,

(7th Cir. 1996) (noting that dismissal

under Rule 4(m) should be with prejudice where a district court

holds that the statute of limitations has r u n ) . In this case,

however, none of the parties have addressed the merits of the

statute of limitations issue.

Accordingly, I grant the defendants’ motions to dismiss

without prejudice. I remind Colby that if he chooses to refile

his claims and proceed pro se, he must comply with all of the

relevant Federal Rules of Civil Procedure.

III. CONCLUSION

For the reasons discussed above, I grant the Henniker

Defendants’ motion to dismiss, (Doc. N o . 4 1 ) , without prejudice,

-12- and the Cohen Defendants’ motion to dismiss, (Doc. N o . 3 8 ) ,

without prejudice.

SO ORDERED.

Paul Barbadoro Chief Judge

February 1 5 , 2001

cc: Floyd Colby, pro se Arpiar G. Saunders, Jr., Esq. Donald E . Gardner, Esq.

-13-