United States District Court, E.D. North Carolina, Western Division
UNITED STATES OF AMERICA ex rel. CICELY BECKER, Plaintiff/Relator,
SHAW UNIVERSITY, FREDDY NOVELO d/b/a NOVELO'S CONSTRUCTION COMPANY, and COMET CONSTRUCTION COMPANY, Defendants.
TERRENCE W. BOYLE CHIEF UNITED STATES DISTRICT JUDGE.
cause comes before the Court on relator's response to
this Court's order to show cause why this action should
not be dismissed for failure to effect proper service within
the time provided by Rule 4(m) of the Federal Rules of Civil
Procedure. Relator was ordered to show cause not later than
July 1, 2019. [DE 68].
Court dispenses with a full recitation of the factual
background of this matter and it incorporates by reference as
if fully set forth herein the background recited in its order
entered June 14, 2019. [DE68].
responded to the to the show cause order on July 2, 2019, by
stating that she has served the summons and first amended
complaint upon defendant Shaw University via Federal Express
on June 29, 2019, with delivery expected July 2, 2019. She
further states that the defendants have already participated
substantially in this action and have had actual notice of
the United States' claims for over a year, and therefore
would not be prejudiced by extending the time in which
relator may effect service. [DE 69].
Rule 4(m) of the Federal Rules of Civil Procedure provides
If a defendant is not served within 90 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). Good cause for failing to effect
service within the time allowed generally exists where a
plaintiff has made "reasonable, diligent efforts to
effect service on the defendant." Hammad v. Tate
Access Floors, Inc., 31 F.Supp.2d 524, 528 (D. Md. 1999)
(internal quotation and citation omitted).
"Inadvertence, neglect, misunderstanding, ignorance of
the rule or its burden, or half-hearted attempts at service
have generally been waived as insufficient to show good
cause." Vincent v. Reynolds Mem 7 Hosp.,
Inc., 141 F.R.D. 436, 437 (N.D. W.Va. 1992).
was granted leave to file her amended complaint through
October 15, 2018, but failed to file her amended complaint
until November 30, 2018. [DE 40; 48]. Summons were issued on
December 3, 2018, and no proof of service on any defendant
has been filed to date. On March 15, 2019, the Clerk of Court
notified relator that service appeared not to have been
effected within the time allowed and that failure to respond
to the notice would result in dismissal of the defendants.
[DE 54]. In her response to the show cause order,
relator's counsel states that once service has been
completed on defendant Shaw University he will file an
affidavit of service, but no affidavit reflecting that
service has been completed has been filed as of the date of
filing of this order. Judgment pursuant to Fed.R.Civ.P. 54(b)
was entered against Freddy Novelo as to the intervened claims
pursuant to his settlement agreement with the United States.
[DE 44]. However, Novelo doing business as Novelo's
Construction Company and Comet Construction Company is named
as a defendant in the amended complaint and summons were
issued for Novelo, but the docket does not reflect service
having been effected or attempted as to Novelo.
record does not reflect any reasonable or diligent effort to
effect service. Relator filed her amended complaint beyond
the time allowed, failed to request an extension of time to
file her amended complaint, and failed to respond to a notice
from the Clerk regarding service which instructed her that to
do so would result in dismissal of the defendants.
Indeed, although relator recognized that her earlier attempt
to serve the defendants via the Court's electronic filing
system was deficient, she took no corrective action until
ordered to do so and has only attempted to serve one
relator's remaining argument, that a defendant has notice
of an action does not necessarily excuse the failure to
effect proper service. "When there is actual notice,
every technical violation of the rule or failure of strict
compliance may not invalidate the service of process. But the
rules are there to be followed, and plain requirements for
the means of effecting service of process may not be
ignored." Armco, Inc. v. Penrod-Stauffer Bldg. Sys.,
Inc., 733 F.2d 1087, 1089 (4th Cir. 1984). The notice
defendants received of this action was due to the limited
participation of the United States, not any unsuccessful
attempts at service by relator, and thus there is more than a
mere technical violation of Rule 4 present. See Beasley
v. Bojangles' Restaurants, Inc., No. 1:17CV255, 2018
WL 4518693, at *3 (M.D. N.C. Sept. 20, 2018). Relator has
further failed to comply with the Court's orders setting
filing deadlines and failed to respond to the Clerk's
notice. See Id. Relator has failed to follow the
plain requirements for effecting service and has failed to
offer any justification which the Court could construe as
dismissal of the defendants named in the amended complaint
without prejudice is required.
having failed to demonstrate good cause for failing to effect
proper service within the time allowed, the amended complaint
is hereby DISMISSED WITHOUT PREJUDICE pursuant to
Fed.R.Civ.P. 4(m). The United States is NOTIFIED of this
dismissal pursuant to its notice of election to intervene in
part [DE 34] and may respond within ten days of the date of
entry of this order if it objects to the ...