Thompson v. Brown

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 96-60020

Summary Calendar

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ROBERT E. THOMPSON,

Plaintiff-Appellant,

VERSUS

JESSIE BROWN,

Secretary of Veterans Affairs,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Mississippi

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July 25, 1996

Before GARWOOD, SMITH, and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Robert E. Thompson filed suit against Jessie Brown, Secretary

of Veterans Affairs, for alleged violations of title VII of the

Civil Rights Act of 1964 and the Americans with Disabilities Act of

1991. Thompson failed to deliver a copy of the summons and

complaint to the attorney for the Southern District of Mississippi

and the Attorney General of the United States, as required by FED.

R. CIV. P. 4(i). The District Court dismissed the suit, without

prejudice, for failure to serve a defendant within 120 days. FED.

R. CIV. P. 4(m). We affirm.

I.

Thompson concedes that he did not have good cause for his

failure to serve the United States Attorney and the Attorney

General but argues that the district court should have exercised

its discretion to grant him an extension of time for service.

Thus, as a threshold matter, we must decide whether rule 4(m),

unlike its predecessor FED. R. CIV. P. 4(j), grants a district court

discretion to permit an extension of time for service, absent a

showing of good cause.

We agree with the majority of circuits that have found that

the plain language of rule 4(m) broadens a district court’s

discretion by allowing it to extend the time for service even when

a plaintiff fails to show good cause.1 See, e.g., Espinoza v.

United States, 52 F.3d 838, 840 (10th Cir. 1995); Petrucelli v.

Bohringer and Ratzinger, 46 F.3d 1298, 1304 (3d Cir. 1995). Rule

4(m) states:

Time Limit for Service. If service of the summons and

complaint is not made upon a defendant within 120 days

after the filing of the complaint, the court, upon motion

or on its own initiative after notice to the plaintiff,

shall dismiss the action without prejudice as to that

defendant or direct that service be effected within a

specified time; provided that if the plaintiff shows good

cause for the failure, the court shall extend the time

for service for an appropriate period.

Under rule 4(m), when a plaintiff fails to serve a defendant within

1

We necessarily reject the Fourth Circuit’s approach, which treats rule

4(m) as identical to the former rule 4(j). See Mendez v. Elliot, 45 F.3d 75, 78

(4th Cir. 1995). The Mendez opinion provides no insight as to why the court

disregarded the plain language of rule 4(m) and instead treats the rule as the

mirror image of rule 4(j). See Mendez, 45 F.3d at 78 (concluding, without

explanation, that rule 4(j) was edited without a change in substance and

renumbered as rule 4(m)).

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the 120-day period, the district court has two choices: It may

either “dismiss the action without prejudice . . . or direct that

service be effected within a specified time.” FED. R. CIV. P. 4(m)

(emphasis added). The next portion of the rule qualifies the

district court’s choices, making an extension of time mandatory

when the plaintiff shows good cause.

As a result of the rule change, when a district court

entertains a motion to extend time for service, it must first

determine whether good cause exists. If good cause is present, the

district court must extend time for service. If good cause does

not exist, the court may, in its discretion, decide whether to

dismiss the case without prejudice or extend time for service. See

generally Petrucelli, 46 F.3d at 1305-06 (discussing the procedure

a district court must adopt under the amended rule).

II.

The entire basis of Thompson’s appeal is that the district

court failed even to consider whether it should exercise its

discretion to grant an extension. From the court’s failure to

assert its discretionary powers, Thompson infers a conclusion by

the district court that it did not have the power to grant an

extension absent a showing of good cause. If the inference is

true, the district court applied an incorrect legal standard and,

as such, abused its discretion.

Our review of the record convinces us that Thompson is

mistaken. The absence of a discussion of the district court’s

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discretionary powers in the court’s order does not demonstrate that

the court misapplied rule 4(m). The court’s failure to discuss its

discretionary power is more properly attributed to the fact that

Thompson did not raise the issue. Rather than concede lack of good

cause and ask the court to grant an extension, Thompson argued that

the defendant had waived the jurisdictional defect by filing an

answer, participating in the case management conference, and

joining in an agreed order of dismissal of improperly named

defendants. Not once did Thompson assert that the court should

excuse his neglect in failing to serve the defendants.

Absent any indication that Thompson raised the issue before

the district court, his claim that the court applied the incorrect

legal standard is insupportable. The court properly dismissed the

claim once it had satisfied itself that good cause did not exist.

Once Thompson admitted lack of good cause and failed to ask the

court for an extension of time, the court was under no obligation

to exercise its discretion.

Thompson’s final allegation is that the district court relied

on cases interpreting rule 4(j), proving that the court incorrectly

believed that it did not have discretion to grant an extension of

time. This argument has no merit. The cases cited by the court

relate to Thompson’s claim that the defendant waived its jurisdic-

tional defenses. In rejecting that argument the court cited two of

its previous opinions, Turner v. United States E.P.A., 848 F. Supp.

711 (S.D. Miss. 1994), and Classic Motel, Inc. v. Coral Group, 149

F.R.D. 528 (S.D. Miss. 1993), for the proposition that the

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defendant did not waive lack of subject matter jurisdiction by

filing an answer and participating in case management. That

general proposition of law was not affected by the amendments to

rule 4, and the court’s citation to them does not demonstrate any

confusion.

AFFIRMED.

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