observing that “the district court has discretion to extend the period if the plaintiff can show excusable neglect for his failure to serve”
How later courts described this case
- observing that “the district court has discretion to extend the period if the plaintiff can show excusable neglect for his failure to serve”
- stating that, pursuant to Rule 4(m), “[t]he district court must extend the 120-day period if the plaintiff shows good cause for his failure to timely serve the defendant”
- noting that plaintiff “was unable to establish good cause or excusable neglect” for failing to effectuate proper service
- stating a rule contrary to Mendez
Written by the judges who cited it.
The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1218
ADAM M. HANSAN,
Plaintiff – Appellant,
v.
FAIRFAX COUNTY SCHOOL BOARD,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:09-cv-00558-GBL-TRJ)
Submitted: November 22, 2010 Decided: December 21, 2010
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David P. Olslund, Arnold, Maryland, for Appellant. Thomas J.
Cawley, Jill Marie Dennis, HUNTON & WILLIAMS, LLP, McLean,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Adam Hansan appeals from the district court’s order
dismissing his case without prejudice for untimely service.
Finding no reversible error, we affirm.
Rule 4(m) of the Federal Rules of Civil Procedure
requires a plaintiff to serve a defendant within 120 days after
a complaint is filed. The district court must extend the 120-
day period if the plaintiff shows good cause for his failure to
timely serve the defendant. Fed. R. Civ. P. 4(m).
Additionally, the district court has discretion to extend the
period if the plaintiff can show excusable neglect for his
failure to serve. Fed. R. Civ. P. 6(b); Henderson v. United
States, 517 U.S. 654, 662-63 (1996). We review a dismissal for
untimely or improper service for abuse of discretion. Shao v.
Link Cargo (Taiwan) Ltd., 986 F.2d 700, 708 (4th Cir. 1993).
We hold that the district court did not abuse its
discretion in dismissing Hansan’s case. Service was untimely,
as it was made almost fifteen months after the original
complaint was filed and over seven months after the case was
transferred from the United States District Court for the
District of Maryland to the United States District Court for the
Eastern District of Virginia.
Further, Hansan was unable to establish good cause or
excusable neglect justifying the delay. Hansan argues that
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there was good cause because he was effectively acting pro se
while he searched for local counsel after his case was
transferred and he believed that the Defendant had already been
served. Pro se status, however, is insufficient to establish
good cause, even where the pro se plaintiff mistakenly believes
that service was made properly. See McNeil v. United States,
508 U.S. 106, 113 (1993) (“[W]e have never suggested that
procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed
without counsel.”); Jonas v. Citibank, 414 F. Supp. 2d 411, 416
(S.D.N.Y. 2006) (holding that a pro se plaintiff’s mistaken
belief that service was proper did not amount to good cause).
Additionally, Hansen provided no justification for his seven-
month delay in finding local counsel in order to effect proper
service, thus failing to demonstrate excusable neglect
warranting an extension.
Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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