Espinoza v. U.S.

• Decision Date: 04 April 1995
• Docket Number: No. 94-1438,94-1438
• Citation: 52 F.3d 838
• Parties: , 31 Fed.R.Serv.3d 1229 Toby J. ESPINOZA, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 838

52 F.3d 838

63 USLW 2629, 31 Fed.R.Serv.3d 1229

Toby J. ESPINOZA, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 94-1438.

United States Court of Appeals, Tenth Circuit.

April 4, 1995.

Toby J. Espinoza, pro se.

Henry L. Solano, U.S. Atty., Michael E. Hegarty, Asst. U.S. Atty., Denver, CO, for defendant-appellee.

Before SEYMOUR, Chief Judge, McKAY and HENRY, Circuit Judges. ^*

HENRY, Circuit Judge.

The plaintiff-appellant in this case, Toby Espinoza, appeals the district court's dismissal without prejudice of his claim against the United States. The district court held that Mr. Espinoza had failed to timely effect service of the summons and complaint under Fed.R.Civ.P. 4. Because we hold that the 1993 amendments to the Federal Rules of Civil Procedure substantially expanded the scope of the district court's discretion under this rule, and because the new rule should have been applied to Mr. Espinoza's claim, we remand the case for reconsideration of the government's motion to dismiss.

BACKGROUND

On March 26, 1993, Mr. Espinoza filed this action against the Department of Veterans Affairs and two individual physicians. Proceeding pro se, he alleged that in 1956 he was exposed to harmful levels of radiation during treatment for arthritis at the Denver Veterans Administration Medical Center. ¹ Mr. Espinoza asserted claims for medical malpractice and for the violation of his right to due process under the United States Constitution. Mr. Espinoza filed an amended complaint in September 1993. On September 14, 1993, Mr. Espinoza mailed the summons and complaint to the Attorney General of the United States via certified mail. On September 25, 1993, he mailed the summons and complaint to the Veterans Administration Hospital Director, also by certified mail. On November 3, 1993, Mr. Espinoza served the summons and complaint upon the United States Attorney. ²

The United States subsequently filed both a motion requesting that it be substituted as the sole defendant and a motion to dismiss the claim based on Mr. Espinoza's failure to timely effect service in compliance with former Fed.R.Civ.P. 4(j) (1987). ³ Mr. Espinoza alleged that he had attempted to mail a copy of the complaint to an office of the Veterans Administration within 120 days of the filing of the original complaint. However, a magistrate We review the district court's dismissal for untimely service for an abuse of discretion. Jones v. Frank, 973 F.2d 872, 872 (10th Cir.1992). We review the district court's interpretation of the federal rule de novo. See F.D.I.C. v. Canfield, 967 F.2d 443, 445 (10th Cir.), cert. dismissed, --- U.S. ----, 113 S.Ct. 516, 121 L.Ed.2d 527 (1992).

                judge found that "no service was made on any of the necessary government personnel in this case until September 14, 1993, well in excess of 120 days after the filing of the [original] Complaint on March 26, 1993."   Aplee. App. at 14.  The magistrate recommended that the district court grant the government's motion to dismiss the claim because of Mr. Espinoza's failure to timely effect service under Fed.R.Civ.P. 4(j) (1987). 4  The district court adopted the magistrate's recommendation in substantial part, 5 and dismissed the case without prejudice for failure to timely effect service under Fed.R.Civ.P. 4(j) (1987). 6
                

DISCUSSION

The 1993 Amendments to the Federal Rules of Civil Procedure

Although the district court relied on Fed.R.Civ.P. 4(j) (1987), this rule was amended and recodified in 1993 and is now Fed.R.Civ.P. 4(m). Rule 4(m) provides in part:

If service of the summons and complaint is not made upon the 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.

Id.

In Petrucelli v. Bohringer & Ratzinger, GMBH, 46 F.3d 1298 (3d Cir.1995), the Third Circuit recently discussed the effect of the 1993 amendment. As a preliminary matter, the court held that Rule 4(m) retroactively applied in that case from the amendment's effective date, December 1, 1993. We similarly hold that Rule 4(m) applies to Mr. Espinoza's claim. As the Petrucelli court noted, the Supreme Court order adopting this and other amendments to the Federal Rules of Civil Procedure specifically stated that these amendments "shall take effect on December 1, 1993, and shall govern all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings in civil cases then pending." The Order of the United States Supreme Court Adopting and Amending the Federal Rules of Civil Procedure (April 22, 1993), reprinted in 113 S.Ct. 478 (1992). We agree with the Fifth Circuit that this language requires application of the new rule "to the maximum extent possible." See Burt v. Ware, 14 F.3d 256, 258 (5th Cir.1994) (per curiam). Mr. Espinoza's case was pending on December 1, 1993, and we note that the magistrate judge's recommendation was not filed until June 29, 1994. Because we believe it to be "just and practicable," we hold that Rule 4(m) applies to the present case.

We also agree with the Petrucelli court that the 1993 amendments substantially changed the scope of discretion to be exercised by district courts under this rule. Specifically, former Rule 4(j) allowed the district court to extend the time for service of the summons and complaint only upon a showing of "good cause." See Fed.R.Civ.P. 4(j) (1987); Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436, 1437 (10th Cir.1994); Jones, 973 F.2d at 873. The district court was otherwise directed to dismiss the case. See Fed.R.Civ.P. 4(j) (1987). The plain language of Rule 4(m), however, broadens the district court's discretion by allowing it to extend the time for service even when the plaintiff has not shown good cause. Under Rule 4(m), when a plaintiff fails to serve a defendant within the 120-day period, the district court "shall dismiss the action without prejudice or direct that service be effected within a specified time." Fed.R.Civ.P. 4(m) (emphasis added). We agree with the Third Circuit that the Rule's further directive that "if the plaintiff shows good cause for the failure, the court shall extend the time for service," id. (emphasis added), serves merely as an exception to the general provision by delineating a situation in which an extension of time is mandatory. See Petrucelli, 46 F.3d at 1305-06.

The Advisory Committee note to Rule 4(m) supports this interpretation:

The new subdivision explicitly provides that the court shall allow additional time if there is good cause for the plaintiff's failure to effect service in the prescribed 120 days, and authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown.

Fed.R.Civ.P. 4(m) advisory committee's note (1993) (emphasis added). Consequently, under the new rule, a plaintiff who has failed to show "good cause" for a mandatory extension of time may still be granted a permissible extension of time within the district court's discretion.

The greater discretion afforded district courts under the new rule does not, however, affect the "good cause" analysis to be undertaken by district courts. Because a plaintiff who shows good cause for failure to timely effect service is entitled to a mandatory extension of time, district courts must still preliminarily examine whether good cause for the delay exists. Additionally, this court's cases that interpret Rule 4(j) remain unaffected insofar as they provide guidance in determining whether good cause has been shown.

Given the foregoing considerations, we follow the Third Circuit by holding that district courts should proceed under the new rule in the following manner: The preliminary inquiry to be made under Rule 4(m) is whether the plaintiff has shown good cause for the failure to timely effect service. In this regard, district courts should continue to follow the cases in this circuit that have guided that inquiry. If good cause is shown, the plaintiff is entitled to a mandatory extension of time. If the plaintiff fails to show good cause, the district court must still consider whether a permissive extension of time may be warranted. At that point the district court may in its discretion either dismiss the case without prejudice or extend the time for service.

Application of the New Procedure to Mr. Espinoza's Case

The district court in this case found that Mr. Espinoza failed to show good cause for the delay in effecting service. In light of this circuit's prior case law, we hold that the district court did not abuse its discretion in this regard. See Despain, 13 F.3d 1436 (holding that where plaintiffs failed to serve the proper parties, good cause was not shown even though the statute of limitations had run, the plaintiffs' counsel had misinterpreted the applicable rule of procedure, the defendants allegedly failed to show that they would be prejudiced by an extension, and the defendants may have had actual notice of the lawsuit); DiCesare v. Stuart, 12 F.3d 973, 980 (10th Cir.1993) ("A pro se litigant is still obligated to follow the requirements of Fed.R.Civ.P. 4."); Jones, 973 F.2d 872 (holding that good cause was not shown where pro se plaintiff attempted service on the proper government parties via regular mail rather than certified or registered mail, where the record did not show that the defendants had actual notice of the complaint, and where the plaintiff had been notified by the United States Attorney that his attempted service failed to comply with the rules).

As we have noted, failure to show good cause for a mandatory extension of time does not end the...