United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2849
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Becky S. Kurka, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Iowa County, Iowa; *
Iowa County Sheriff’s Department, *
*
Appellees. *
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Submitted: September 20, 2010
Filed: December 15, 2010
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Before RILEY, Chief Judge, MELLOY and COLLOTON, Circuit Judges.
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RILEY, Chief Judge.
Becky S. Kurka appeals the district court’s1 denial of her motion to extend time
to effect service of summons pursuant to Fed. R. Civ. P. 4(m), and the grant of Iowa
County, Iowa, and the Iowa County Sheriff’s Department’s (collectively, the County)
motion to dismiss. Kurka contends an extension was warranted because the Clerk of
the United States District Court for the Northern District of Iowa failed to issue a
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
summons as directed by Local Rule 5.2g.2.2 The district court found Kurka did not
demonstrate “good cause” to warrant a mandatory extension or “excusable neglect” to
warrant a discretionary extension. We affirm.
I. BACKGROUND
On July 31, 2008, Kurka commenced an action in the United States District
Court for the Northern District of Iowa against the County, alleging gender
discrimination and retaliation in violation of 42 U.S.C. § 2000e et seq. Rule 4(m)
required Kurka to serve process upon the County within 120 days of filing the
complaint. Fed. R. Civ. P. 4(m). The 120-day deadline expired November 28, 2008.
On December 11, 2008, Kurka’s counsel contacted counsel for the County
regarding the need to submit a joint discovery and scheduling order. The County’s
attorney advised Kurka’s counsel that the County was unaware of any court action.
Kurka’s counsel investigated and determined the clerk had not issued a summons as
directed by Local Rule 5.2g.2. After being prompted by Kurka, the clerk issued the
summons on December 16, 2008. The district court’s docket did not record any
activity in the case between Kurka filing her complaint on July 31, 2008, and the clerk
issuing the summons on December 16, 2008.
After speaking with counsel for the County on December 11, 2008, Kurka’s
counsel submitted a proposed scheduling order and discovery plan (scheduling order)
to the district court without input from the County’s attorney. In the scheduling order,
Kurka’s counsel averred “[c]ounsel have conferred and submit the following case
information and proposed dates for case management,” followed by detailed
information regarding deadlines and the expected disposition of the case. Kurka’s
counsel maintains he submitted the ex parte scheduling order on his signature alone to
2
Local Rule 5.2g.2 states, “When a new case is filed, the Clerk of Court will
deliver to the plaintiff a signed and sealed summons.”
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comply with the district court’s deadline and the County’s counsel did not object.
Kurka’s counsel further maintains he explained his reason for filing the ex parte
scheduling order to a magistrate judge’s law clerk. The district court doubted the truth
of Kurka’s counsel’s explanation.
On December 17, 2008, Kurka filed a motion to extend time to effect service of
summons, arguing good cause existed for extending the time because the clerk had not
issued a summons as directed by Local Rule 5.2g.2. The County resisted Kurka’s
motion. Kurka’s brief in support of her motion explained her delay in serving the
County, but did not refer to Kurka’s ex parte scheduling order. Kurka’s counsel
informed the district court that his office procedure was to wait for the summons from
the clerk before arranging for service of process. Because the clerk did not issue the
summons, Kurka’s counsel’s “ministerial procedure was never triggered.”
Kurka indicates she began the process of serving the County immediately upon
receipt of the summons, but had some difficulty because Kurka could not use the
sheriff, the only process server in the county and a defendant in the case. Kurka’s
commercial process server from a neighboring county was unable to serve the County
on Thursday or Friday due to a blizzard, but executed service the following Monday,
December 22, 2008.
That same date, the County filed a motion to dismiss pursuant to Rules 4(l) and
(m) and 12(b) for failure to serve timely process. Kurka filed her resistance on January
2, 2009. On March 30, 2009, the district court denied Kurka’s motion to extend time
and granted the County’s motion to dismiss without prejudice.
Before analyzing Kurka’s and the County’s respective motions, the district court
determined Kurka’s scheduling order was “nothing more than a series of false
representations to the court.” Addressing the motions, the district court decided Kurka
failed to show good cause or excusable neglect warranting a retroactive extension of
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the time to serve the County. The district court found the clerk’s error was not good
cause for Kurka’s extended inaction in the case because “a reasonable practitioner
would not fail to place any redundancies in his internal office procedure such that he
might completely forget about a case for almost five months.”
With respect to excusable neglect, Kurka’s counsel avers the statute of limitation
applying to Kurka’s discrimination claim had expired, barring Kurka from refiling.
The district court found the excusable neglect decision was a closer matter than the
good-cause decision and opined the court normally would be inclined to grant the
extension because the clerk of court failed to issue a summons as the clerk is required
to do, the County had notice of the suit prior to formal service, and dismissal without
prejudice was presumably tantamount to dismissal with prejudice in light of the
applicable statute of limitation. However, the district court found the facts of this case
“highly unusual” because, in the district court’s view, Kurka was not diligent following
discovery of the error, and also “lie[d] to the court.” As a result, the district court
declined to exercise its discretion to extend the deadline and dismissed the case without
prejudice to refiling.
Kurka filed a motion to alter or amend judgment pursuant to Fed. R. Civ. P.
59(e), or alternatively Fed. R. Civ. P. 60(b)(1) and 60(b)(6), which the district court
denied. Kurka appeals.
II. DISCUSSION
Kurka argues the district court made erroneous factual findings and disregarded
and misapplied applicable law, and wrongly dismissed her complaint for failing to
serve the County within 120 days of filing her complaint. Under Rule 4(c)(1), “[t]he
plaintiff is responsible for having the summons and complaint served within the time
allowed by Rule 4(m).” Rule 4(m) provides in relevant part,
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(m) Time Limit for Service. If a defendant is not served within 120
days after the complaint is filed, the court [on motion of a defendant]
must dismiss the action without prejudice against that defendant or order
that service be made within a specified time. But if the plaintiff shows
good cause for the failure, the court must extend the time for service for
an appropriate period.
“Thus, under Rule 4(m), if the district court concludes there is good cause for
plaintiff’s failure to serve within 120 days, it shall extend the time for service. If
plaintiff fails to show good cause, the court still may extend the time for service rather
than dismiss the case without prejudice.” Adams v. AlliedSignal Gen. Aviation
Avionics, 74 F.3d 882, 887 (8th Cir. 1996). To warrant a discretionary extension, the
plaintiff must establish excusable neglect. See Colasante v. Wells Fargo Corp., 81 F.
App’x 611, 613 (8th Cir. 2003) (per curiam) (unpublished) (citing Coleman v.
Milwaukee Bd. of Sch. Dirs., 290 F.3d 932, 934 (7th Cir. 2002).
We review for abuse of discretion the district court’s decision to dismiss an
action for untimely service and to grant or deny an extension of time pursuant to Rule
4(m). See Adams, 74 F.3d at 887-88. We also review the district court’s denial of a
Rule 59(e) motion to alter or amend a judgment for abuse of discretion.3 See
Christensen v. Qwest Pension Plan, 462 F.3d 913, 920 (8th Cir. 2006) (citation
omitted). “An abuse of discretion occurs where the district court fails to consider an
important factor, gives significant weight to an irrelevant or improper factor, or
commits a clear error of judgment in weighing those factors.” Gen. Motors Corp. v.
Harry Brown’s, LLC, 563 F.3d 312, 316 (8th Cir. 2009).
A. Good Cause
Rule 4(m) does not define good cause, and courts have not given conclusive
meaning to the phrase. See 4B Charles Alan Wright & Arthur R. Miller, Federal
3
Kurka did not appeal the district court’s denial of her Rule 60(b) motion.
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Practice and Procedure § 1137 (3d ed. 2002); see also Colasante, 81 F. App’x at 613
(“There is no comprehensive definition of what constitutes good cause sufficient to
warrant a mandatory extension under Rule 4(m).”). “A showing of good cause requires
at least ‘excusable neglect’—good faith and some reasonable basis for noncompliance
with the rules.” Adams, 74 F.3d at 887. “[G]ood cause is likely (but not always) to be
found when [1] the plaintiff’s failure to complete service in timely fashion is a result
of the conduct of a third person, typically the process server, [2] the defendant has
evaded service of the process or engaged in misleading conduct, [3] the plaintiff has
acted diligently in trying to effect service or there are understandable mitigating
circumstances, or [4] the plaintiff is proceeding pro se or in forma pauperis.” Wright
& Miller § 1137, supra at 342.
At its core, however, the standard of good cause, like many others in the
law, is necessarily amorphous. Whether or not it has been satisfied is
largely dependent upon the facts of each individual case. It is for this
very reason that such a determination is entrusted to the sound and
considerable discretion of the district court in the first instance.
Colasante, 81 F. App’x at 613.
Here, Kurka contends the clerk’s failure to deliver the summons as required by
Local Rule 5.2g.2, combined with Kurka’s efforts to serve the County after
discovering the error, constitute good cause warranting a mandatory extension.
According to Kurka, in Lujano v. Omaha Pub. Power Dist., 30 F.3d 1032 (8th Cir.
1994), a panel of this court “adopted a test generally applicable to those situations
where . . . a mistake of the Clerk played some part in [a delay in service]” whereby the
district court should not “attempt to allocate ‘fault’ between the clerk and the
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Plaintiff,” but should grant relief if the plaintiff “is diligent in taking steps to rectify
the situation.”4 Kurka’s expansive reading of Lujano is incorrect.
First, Kurka conflates the analysis of good cause for a mandatory extension and
the district court’s discretion to grant an extension in the absence of good cause.
Under Rule 4(m), the district court must determine whether good cause exists for the
plaintiff’s failure to serve the defendant within the 120-day deadline, not whether
good cause exists for an extension of time to complete service. In determining
whether good cause exists, the district court must focus primarily “on the plaintiff’s
reasons for not complying with the time limit in the first place.” Boley v. Kaymark,
123 F.3d 756, 758 (3d Cir. 1997) (quotations omitted).
Kurka’s efforts to serve the County after the 120-day time for service had
expired, the lack of prejudice to the County, and the lethal effect of the statute of
limitation are properly considered in determining whether the circumstances warrant
a discretionary extension. See, e.g., Rule 4, Advisory Committee Note to the 1993
Amendments, Subdivision (m) (discretionary relief may be justified if the statute of
limitation would bar the refiled action); Horenkamp v. Van Winkle and Co., 402 F.3d
1129, 1133 (11th Cir. 2005) (finding notice to defendant, subsequent service and the
running of the statute of limitation warranted discretionary extension); Coleman v.
Milwaukee Bd. of Sch. Dirs., 290 F.3d 932, 934 (7th Cir. 2002) (evaluating whether
actual notice, prejudice to the defendant and the effect of the statute of limitation
running required a discretionary extension); Petrucelli v. Bohringer and Ratzinger, 46
F.3d 1298, 1306 (3d Cir. 1995) (holding “a district court may not consider the fact that
the statute of limitation has run until after [the court] has conducted an examination
of good cause”).
4
The panel in Lujano applied Rule 4(j), which did not permit the district court
to grant an extension absent good cause.
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Second, the delay in issuing the summons in Lujano was only one of many
factors that weighed in favor of finding good cause. In addition to the clerk’s error,
we noted Lujano, a pro se plaintiff proceeding in forma pauperis at the time, acted in
good faith throughout the pendency of his suit and followed up with the clerk
regarding the status of his case shortly after the clerk referred the case to the
magistrate judge. Lujano, 30 F.3d at 1034-35. The clerk advised Lujano the case
could not proceed until reviewed by the magistrate judge. Id. at 1034. Unlike Lujano,
Kurka, represented by counsel, failed to take any action to follow up with the clerk or
otherwise move the case forward before the 120-day deadline expired.
The district court acknowledged the clerk’s error but determined Kurka did not
demonstrate good cause because the clerk’s error did not excuse Kurka’s extended
inaction in the case and her counsel’s failure to establish counsel’s own procedural
safeguards to ensure Kurka met her crucial burden of timely service. We find no
abuse of discretion in the district court’s conclusion. Finding good cause based on the
clerk’s error alone, as Kurka suggests, would improperly shift the burden to effect
service from the plaintiff to the clerk and undermine the purpose of Rule 4(m).
B. Excusable Neglect
We have described excusable neglect as “an ‘elastic concept’ that empowers
courts to” provide relief where a party’s failure to meet a deadline is “caused by
inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond
the party’s control.” Chorosevic v. MetLife Choices, 600 F.3d 934, 946 (8th Cir.
2010) (reviewing excusable neglect under Fed. R. Civ. P. 6(b)) (quoting Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392, 388 (1993)). “The
determination of whether neglect is excusable ‘is at bottom an equitable one, taking
account of all relevant circumstances surrounding the party’s omission.’” Id.
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In determining whether neglect is excusable, the following factors are
particularly important: (1) the possibility of prejudice to the defendant, (2) the length
of the delay and the potential impact on judicial proceedings, (3) the reason for the
delay, including whether the delay was within the party’s reasonable control, and
(4) whether the party acted in good faith. See Pioneer Inv. Servs. Co., 507 U.S. at
395; In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863,
866 (8th Cir. 2007) (citation omitted). These factors do not bear equal weight as the
reason for delay is generally a key factor in the analysis. See In re Guidant Corp., 496
F.3d at 867.
Because the judicial preference for adjudication on the merits, which goes to
the fundamental fairness of the adjudicatory process, is implicated here, the district
court must weigh the effect on the party requesting the extension against the prejudice
to the defendant. See Chorosevic, 600 F.3d at 947 (finding the denial of a motion to
file out of time would have imposed on the appellees a severe penalty unmatched by
any prejudice to the appellant). “However, ‘the running of the statute of limitations
does not require the district court to extend time for service of process.’” Adams, 74
F.3d at 887 (quoting Petrucelli, 46 F.3d at 1306); see also Colasante, 81 F. App’x at
613 (holding the district court did not abuse its discretion in finding no good cause or
excusable neglect in the plaintiff’s “inattention to procedural rules,” even though
dismissal without prejudice effectively barred plaintiff’s claim).
In this case, the district court evaluated the record as a whole before denying
Kurka’s request for a discretionary extension. The district court considered the clerk’s
failure to issue the summons, Kurka’s efforts before and after discovering her failure
to serve process before the deadline, the notice the County received before formal
service, the minimal prejudice to the County and the potential hardship to Kurka
posed by the statute of limitation expiration. The district court determined the totality
of the circumstances did not warrant a discretionary extension because, in the district
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court’s view, Kurka was not diligent following discovery of the error and was not
forthright with the court about other matters.
Kurka asserts the district court abused its discretion because the decision to
deny Kurka discretionary relief was not supported by the record and “the District
Court’s consideration of [the relevant] factors was a hollow exercise.” Kurka
maintains she did not make any false representations and, under the circumstances,
serving the County within five days of receiving the summons undeniably
demonstrated her diligence.
The district court considered the pertinent factors, including those Kurka
contends warranted a discretionary extension. The district court described the facts
as “highly unusual,” which they are. We conclude the district court did not make any
clearly erroneous factual findings in weighing the appropriate factors. Although the
clerk’s initial error, Kurka’s efforts after discovering her failure to serve the County
before the 120-day deadline, the minimal prejudice to the County, and the apparent
dispositive harm to Kurka’s case all favored granting Kurka a short discretionary
extension, we are unable to conclude the district court abused its considerable
discretion in denying such relief.
III. CONCLUSION
The judgment of the district court is affirmed.
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