IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE EASTERN DIVISION

IYOV KINNIBURGH and ) KINNIBURGH CONCRETE, LLC, ) ) Plaintiff, ) ) No. 1:23-cv-01190-STA-jay vs. ) ) ) ARLY KINNIBURGH and ) KINNIBURGH CONSTRUCTION, LLC, )

Defendants.

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AND EXTENDING TIME FOR SERVICE OF PROCESS ______________________________________________________________________________

Plaintiffs filed this action on September 7, 2023, and summonses were issued on September 8, 2023. Because the summonses have not been returned as executed, even though the requisite time for service has passed, Defendants have moved for the action to be dismissed on the ground of insufficient service of process. (ECF No. 13.) Plaintiffs have filed a response and accompanying affidavit (ECF Nos. 19, 20) which describe various problems that have arisen in attempting to serve Defendants. They seek an additional thirty (30) days in which to serve Defendants. Under Rule 4(m) of the Federal Rules of Civil Procedure, “[i]f a defendant is not served within 90 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. The court has discretion to permit late service even absent a showing of good cause. See Henderson v. United States,

(1996); see also DeVane v. Hannah,

, at *2 (M.D. Tenn. Nov.28, 2011) (observing that Sixth Circuit language stating that dismissal is mandatory absent good cause “originated based on a prior version of Rule 4(m), then Rule 4(j), which did not include the option for a court to

order that service be made within a specified time as an alternative to dismissal”); Fed. R. Civ. P. 4 advisory committee's note (stating that the 1993 amendment “authorizes the court to relieve a plaintiff of the consequences of an application of [Rule 4(m) ] even if there is no good cause shown. In the present case, the Court finds that Plaintiffs have shown good cause for their failure to serve Defendants within the requisite time. Accordingly, the motion to dismiss is DENIED. Plaintiffs will have an additional thirty from the entry of this order in which to serve Defendants with process. IT IS SO ORDERED.

s /S. Thomas Anderson S. THOMAS ANDERSON UNITED STATES DISTRICT JUDGE

Date: February 8, 2024