United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
ELLEN SEGAL HUVELLE, District Judge.
Before the Court is plaintiff's motion to extend time to effect service of process on defendant Sergeant Kevin Pope. ("Mot.", Jan. 16, 2014 [Dkt. No. 17].) For the forgoing reasons, the Court will grant plaintiff's motion and provide plaintiff thirty days to effect service on Sergeant Pope.
On November 13, 2012, plaintiff filed this action in Superior Court for the District of Columbia against the District of Columbia and Sergeant Pope, her direct supervisor at the Metropolitan Police Department, alleging, inter alia, that Sergeant Pope sexually harassed her in violation of Title VII of the Civil Rights Act of 1964. Defendants removed the case to this Court on December 17, 2012. Although plaintiff successfully served the District of Columbia, plaintiff has not effected service on Sergeant Pope.
Plaintiff admits that she "suspended efforts to serve Defendant Pope with service of process in anticipation of an Answer being filed on his behalf by" D.C. Office of the Attorney General ("OAG") counsel. (Mot. at 4.) When OAG counsel filed an answer, plaintiff's counsel "did not notice" that the answer was filed only on behalf of the District of Columbia ( id. at 5), despite the fact that the answer states (in bold and underlined capitalized letters) "Defendant District of Columbia's Amended Answer to Plaintiff's Complaint" (Jan. 14, 2013 [Dkt. No. 4] at 1), and the ECF docket identifies the entry as "ANSWER to Complaint... by DISTRICT OF COLUMBIA."
Notwithstanding plaintiff's failure to serve him with process, Sergeant Pope has attended depositions, was himself deposed, and appeared at the initial scheduling conference before this Court. ( Id. at 4.) Plaintiff's counsel discovered his "oversight" regarding Sergeant Pope's service during Sergeant Pope's deposition on November 20, 2013. ( Id. ) On January 16, 2014, 429 days after bringing this action in Superior Court, plaintiff filed the instant motion to extend the time to effect service of process on Sergeant Pope.
"Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.'" Mann v. Castiel, 681 F.3d 368, 372 (D.C. Cir. 2012) (quoting Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999)). "Under the federal rules enacted by Congress, federal courts lack the power to assert personal jurisdiction over a defendant unless the procedural requirements of effective service of process are satisfied." Id. (internal quotation marks omitted). "Service is therefore not only a means of notifying a defendant of the commencement of an action against him, but a ritual that marks the court's assertion of jurisdiction over the lawsuit." Id. (internal quotation marks omitted).
Federal Rule of Civil Procedure 4(m) provides, in relevant part, that:
If a defendant is not served within 120 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - 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.
Fed. R. Civ. P. 4(m). A majority of the Courts of Appeals have held that Rule 4(m) sets out a two-step procedure for considering motions to extend the time for service. See Mann, 681 F.3d at 375-76. Simply put, "if good cause for the delay is shown, the court must extend the time for service, while if good cause is not shown, the court has a choice between dismissing the suit and giving the plaintiff more time." United States v. McLaughlin, 470 F.3d 698, 700 (7th Cir. 2006); see also, e.g., Kurka v. Iowa Cnty., Iowa, 628 F.3d 953, 957 (8th Cir. 2010); Horenkamp v. Van Winkle And Co., 402 F.3d 1129, 1132 (11th Cir. 2005); Mann v. Am. Airlines, 324 F.3d 1088, 1090-91 (9th Cir. 2003); 4B Wright, Miller, & Kane, Federal Practice and Procedure § 1137.
A plaintiff bears a heavy burden when attempting to establish "good cause" for failure to effect service of process, see Mann v. Castiel, 729 F.Supp.2d 191, 196 (D.D.C. 2010), and "[m]istake of counsel or ignorance of the rules of procedure usually does not suffice." Whitehead v. CBS/Viacom, Inc., 221 F.R.D. 1, 3 (D.D.C. 2004) (internal quotation marks omitted). Instead, "[g]ood cause exists when some outside factor... rather than inadvertence or negligence, prevented service, for example, a defendant's intentional evasion of service...." Mann, 681 F.3d at 374 (internal quotation marks omitted). Further, "a plaintiff must employ a reasonable amount of diligence in determining... how to effect service" before good cause may be found. Prunte v. Universal Music Group, 248 F.R.D. 335, 338-39 (D.D.C. 2008). In short, "[g]ood cause means a valid reason for delay." Mann, 681 F.3d at 375 (internal quotation marks omitted).
The Courts of Appeals split as to whether, in the absence of "good cause, " a district court's discretion to extend the time for service "is cabined by Rule 6(b)(2)'s requirement that excusable neglect' be found, or by equitable factors." Mann, 681 F.3d at 376 (comparing Turner v. City of Taylor, 412 F.3d 629, 650 (6th Cir. 2005), with United States v. McLaughlin, 470 F.3d 698, 700 (7th Cir. 2006)). Under any standard, however, an extension is inappropriate "when the plaintiff's failure to effect proper service is the result of inadvertence, oversight, or neglect, and ...