UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1045
SILVIA G. MARTINEZ,
Plaintiff – Appellant,
v.
UNITED STATES OF AMERICA; UNITED STATES
POSTAL SERVICE,
Defendants – Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Chief U.S.
District Judge. (8:13-cv-00237-DKS)
Submitted: June 2, 2014 Decided: July 7, 2014
Before KING, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kenneth J. Coughlan, ANNE HOKE & ASSOCIATES, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Jakarra J. Jones, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Silvia Martinez appeals the dismissal of her claim for
untimely service of process pursuant to Federal Rule of Civil
Procedure 4(m). Although Martinez acknowledges that she did not
timely serve process, she argues that the district court erred
by failing to grant an extension of time required by Rule 4(m).
For the reasons that follow, we affirm.
I.
On January 23, 2013, Martinez filed a complaint against the
United States pursuant to the Federal Tort Claims Act. 28
U.S.C. §§ 2671, et seq. Her claim arose from an automobile
collision with a United States Postal Service vehicle. The
district court issued summonses the next day. On May 28, 125
days after the filing of the complaint, the district court had
received no proof that the complaint and summons had been served
on the United States, and requested a status report from
Martinez addressing the issue of service. Martinez did not
respond.
On June 13, the court ordered Martinez to show cause why
her complaint should not be dismissed for failure to serve
process within the requisite time period. See Fed. R. Civ. P.
4(m). On June 25, Martinez filed a memorandum in support of a
request for an extension of time. She stated that her attorney
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had changed his primary email address but had failed to register
the change in the court’s electronic case filing system (“ECF”)
and therefore had not been informed that the summonses had
issued. Martinez conceded that her attorney had been unaware of
the problem at the time, but asserted that he had subsequently
corrected the email address. The district court granted
Martinez’s motion, allowing her 30 additional days, until July
30, to serve the United States.
Martinez served the United States on August 15, twenty days
after the expiration of the extension. On November 18, the
United States moved to dismiss Martinez’s complaint for failure
to timely serve process. Fed. R. civ. P. 12(b)(5). Martinez
filed a response claiming that she was entitled to a further
extension because the ECF continued to send notifications only
to her attorney’s incorrect email address, despite his diligent
attempts to correct this problem. The district court found that
Martinez could show neither good cause nor excusable neglect for
her failure to serve, and granted the government’s motion.
Martinez timely appealed.
II.
We review the dismissal of a complaint for failure to
timely serve process for abuse of discretion. Shao v. Link
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Cargo (Taiwan) Ltd., 986 F.2d 700, 708 (4th Cir. 1993) (applying
Rule 4(m)’s predecessor, Rule 4(j)).
III.
Rule 4(m) requires a plaintiff to serve the defendant
within 120 days. A plaintiff may escape dismissal for failure
to timely serve process only if she demonstrates “good cause”
for the delay. Fed R. Civ. P. 4(m). If a plaintiff requests an
extension of time after the expiration of the 120 day limitation
period, she must also show that she “failed to act because of
excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B).
Martinez acknowledges that she did not serve process within
the limitation period and that she did not request an extension
until after the expiration of that period. Therefore, to
prevail on appeal, Martinez must show both excusable neglect and
good cause. Because Martinez cannot show excusable neglect, we
need not reach the question of good cause.
Martinez argues that her failure to timely serve process
constitutes excusable neglect because it was the result of an
error within the ECF that was outside her control. We disagree.
“Excusable neglect is not easily demonstrated.” Thompson
v. E.I. DuPont de Nemours & Co., Inc., 76 F.3d 530, 533 (4th
Cir. 1996) (internal quotation marks omitted)(interpreting
excusable neglect in the context of Federal Rule of Appellate
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Procedure 4(a)(5)). We have held that “a party that fails to
act with diligence will be unable to establish that [her]
conduct constituted excusable neglect.” Robinson v. Wix
Filtration Corp., LLC, 599 F.3d 403, 413 (4th Cir.
2010)(interpreting excusable neglect as used in Federal Rule of
Civil Procedure 60(b)(1)). *
Here, Martinez’s attorney was clearly aware that the ECF
was sending notifications to an improper email address before
the extension was granted. Even if he believed he had fixed the
problem, a reasonably diligent attorney would have monitored
that email address or the court’s docket until he was certain
that the ECF was functioning properly. Martinez cannot
establish that her conduct constituted excusable neglect. We
therefore find no abuse of discretion in the district court’s
dismissal of her complaint.
*
Excusable neglect generally has the same meaning
throughout the federal procedural rules. See, e.g. Pioneer Inv.
Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S.
380, 392 (interpretation of excusable neglect as used in Federal
Rule of Bankruptcy Procedure 9006(b)(1) was “strongly supported”
by the meaning of excusable neglect as used in Federal Rule of
Civil Procedure 6(b)); Thompson, 76 F.3d at 534–35 (excusable
neglect interpreted the same in Federal Rule of Bankruptcy
Procedure 9006(b)(1) as in Federal Rule of Appellate Procedure
4(a)(5)).
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IV.
For the foregoing reasons, we affirm the dismissal of
Martinez’s claim. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid in the
decisional process.
AFFIRMED
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