United States District Court, W.D. Virginia, Lynchburg Division
Gregory Delmus Staton, Plaintiff, represented by Harry Wayne
REPORT AND RECOMMENDATION
S. BALLOU, Magistrate Judge.
Gregory Delmus Staton, by counsel, seeks relief under 42
U.S.C. Â§ 1983 for events that allegedly occurred during his
transport from a jail in Virginia to the Santa Rosa County
Sheriff's office in Florida in September 2013. Staton
also brings state law claims against the defendants.
Currently before me is Staton's motion for an extension
of time to serve defendants not yet served (Dkt. No.
9). For the reasons set forth below, I
recommend that Staton's motion for an extension of time
to serve defendants be DENIED.
Staton filed his complaint on September 29, 2015, he was
unable to name any defendants and instead used John Doe 1-10
and Jane Doe as placeholders. Thereafter, Staton filed a
return of service indicating that "John Doe 1, believed
to be USG7, LLC" was served on December 23, 2015. See
Dkt. No. 8. However, Staton has not filed a return of service
for any of the other defendants and on January 28, 2016 he
filed a motion to enlarge time for service upon defendants.
In his motion, Staton stated that the remaining defendants
were all "believed to be employees of [John Doe 1]"
and that "despite the best efforts of the plaintiff no
information has become available which would allow the
plaintiff to effect service... and good cause exists to
extend time." Mot. at 2, Dkt. No. 9.
20, 2016, I entered an order directing Staton to show good
cause for why service had still not been made, including
stating "with specificity the steps he has taken to
accomplish service of process." See Dkt. No. 11. Staton
submitted his response on June 6, 2016, explaining that he
had requested documents from the Santa Rosa County and
Rockbridge County Sheriffs' offices, served USG7, LLC,
made "multiple calls and mailed letters to contact
persons whose identities are known, " reviewed internet
activity related to USG7, LLC and U.S. Corrections, LLC,
reviewed federal litigation dockets and pleadings, and
unsuccessfully attempted to contact an individual named Ash
Jacques, who may be "a common link between U.S.
Corrections, LLC, and USG7, LLC." See P's Br. at
1-3, Dkt. No. 15.
time Staton filed his complaint in September 2015, Federal
Rule of Civil Procedure 4(m) permitted dismissal of an action
without prejudice "[i]f a defendant is not served within
120 days after the complaint is filed...." Fed.R.Civ.P.
4(m). The rule allows the court to either
dismiss on motion or sua sponte, after notice to the
plaintiff. Fed.R.Civ.P. 4(m). "But if the plaintiff
shows good cause for the failure, the court must extend the
time for service for an appropriate period." Id
. Whether Rule 4(m) vests a court with discretion to extend
the service deadline in the absence of good cause is less
clear. But, because I recommend declining to
extend the time for service, I need not decide whether I have
discretion to extend the 120-day window for service absent a
showing of good cause. See Carderelli v. Duruttya, No.
5:15CV00004, 2015 WL 5430252, at *5 (W.D. Va. Sept. 14,
"good cause" for extension of the Rule 4(m)
deadline, Staton must show that he "made reasonable and
diligent efforts to effect service prior to the 120-day
limit...." Quann v. White-Edgewater, 112 F.R.D.
649, 659 (D.Md.1986); Elkins v. Broome, 213 F.R.D.
273, 276 (M.D. N.C. 2003) (citing 1 James W. Moore et al.,
Moore's Fed. Practice Â§ 4.82 (3d ed.2002)) ("[T]o
establish good cause, Plaintiff must show that he acted in
good faith and demonstrate some form of due diligence in
attempting service."). Accordingly, a court may find
good cause "where the plaintiff has taken some
affirmative action to effectuate service of process upon the
defendant or ha[s] been prohibited, through no fault of his
own, from taking such an affirmative action.'"
Tenenbaum, 2011 WL 2038550, at *4 (quoting
Vincent v. Reynolds Mem'l Hosp., Inc., 141
F.R.D. 436, 437 (N.D.W.Va.1992)).
has now had ample opportunity to show good cause for his
failure to timely effect service. In my May 23, 2016 order, I
specifically cited to Rule 4(m) and directed Staton to show
"good cause for why service has still not been
made." See Dkt. No. 11. While Staton listed steps he had
taken in his attempt to accomplish service of process, other
than indicating that an individual named Ash Jacques may be
avoiding his calls and letters, Staton provided no
explanation as to why he could not identify the defendants
from the information he apparently obtained, nor has he
provided any reasons for his continued delay. Accordingly, I
find that Staton has not shown good cause for his failure to
timely effect service. Further, to the extent that I may have
discretion to extend the service deadline absent good cause,
I decline to exercise such discretion. See Hoffman v.
Baltimore Police Dep't, 379 F.Supp.2d 778, 786 (D.
Md. 2005) ("Were the Court to assume that Mendez is no
longer good law and that a finding of good cause is not
required, the Court would still need to have some reasoned
basis to exercise its discretion and excuse the untimely
service: the Court must give some import to the rule.").
it is hereby RECOMMENDED that Staton's motion for an
extension of time to serve defendants (Dkt. No. 9) be DENIED
and Staton's claims against the defendants not yet served
(John Does 2-10 and Jane Doe) be dismissed without prejudice,
for failure to serve process within the time provided by Rule
Clerk is directed to transmit the record in this case to
Norman K. Moon, United States District Judge, and to provide
copies of this Report and Recommendation to counsel of
record. Both sides are reminded that pursuant to Rule 72(b),
they are entitled to note any objections to this Report and
Recommendation which must be filed within fourteen (14) days
hereof. Any adjudication of fact or conclusion of law
rendered herein by me that is not specifically objected to
within the period prescribed by law may become conclusive
upon the parties. Failure to file specific objections
pursuant to 28 U.S.C. Â§ 636(b)(1) as to factual recitations
or findings as well as to the conclusion reached by me may be
construed by any reviewing court as a waiver of such
objection, including a waiver of the right to appeal.
 I find it appropriate to dispense with
oral argument pursuant to Federal Rule of Civil Procedure
78(b) and Local Rule 11(b). Fed.R.Civ.P. 78(b); W.D. Va. Civ.
 Staton indicates that U.S. Corrections,
LLC and USG7, LLC "apparently now engage in the same
business activity and serve some of the same customers,
apparently with some of the same personnel and... common
owners and/or ...