United States District Court, W.D. Virginia, Charlottesville Division
Glen E. Conrad Senior United States District Judge
Mason filed this action against Lewis Contracting Services,
LLC ("Lewis Contracting"), asserting claims under
Title VII of the Civil Rights Act of 1964 ("Title
VII"), 42 U.S.C. § 2000e et seq, and the
Age Discrimination in Employment Act of 1967
("ADEA"), 29 U.S.C. § 621 et seq. The
defendant has moved to dismiss the complaint for failure to
effect timely service of process under Federal Rule of Civil
Procedure 4(m). In response, the plaintiff has filed a motion
to extend the time for service. The parties' motions have
been fully briefed and are ripe for disposition. For the
following reasons, the court will exercise its discretion to
extend the time for service of process. Accordingly, the
plaintiffs motion will be granted and the defendant's
motion will be denied.
is a resident of Charlottesville, Virginia. Lewis Contracting
is a limited liability company based in Atlanta, Georgia. In
September of 2016, Lewis Contracting performed work as a
subcontractor on a development project in Charlottesville.
The company hired Mason to work as a laborer. Mason alleges
that he was subjected to unlawful harassment, discrimination,
and retaliation during his employment, which culminated in
his termination, Mason filed a charge of discrimination with
the Equal Employment Opportunity Commission
("EEOC"). The EEOC issued a right-to-sue letter on
July 10, 2018. Ninety days later, on October 8, 2018, Mason
commenced the instant action. Before serving the defendant,
Mason filed an amended complaint on December 7, 2018.
point thereafter, Mason retained a professional process
server in Atlanta to serve the defendant. The plaintiff has
submitted a sworn declaration from the process server,
Margaret Ruddock. According to the declaration, Ruddock
attempted to personally serve the defendant's registered
agent, Jay W. Pakchar, Esq., on January 3, 2019.
Pakchar's receptionist advised Ruddock that Pakchar was
not in the office and that she did not see him every day.
Ruddock informed the receptionist that she needed to serve
Pakchar as the registered agent for Lewis Contracting. The
receptionist gave Ruddock a business card containing
Pakchar's telephone number. Ruddock called the number and
left a message advising Pakchar that she was attempting to
effect service on him. After she did not receive a response,
Ruddock called Pakchar again the following day and left the
same message. Pakchar did not respond to Ruddock's phone
calls. On January 8, 2019, Ruddock returned to Pakchar's
office, where she served him with process.
January 15, 2019, Mason filed a proof of service signed by
Ruddock. The proof of service indicates that Pakchar was
served with process on January 8, 2019 at 11:02 a.m. The
parties have since filed the instant motions.
2015, the presumptive time for serving a defendant was
reduced from 120 days to 90 days. See Fed. R Civ. P. 4(m),
Advisory Comm. Notes (2015 Amendment). The service clock
starts on the date the complaint is filed against a
defendant, Fed.R.Civ.P. 4(m), and "is not restarted by
the filing of an amended complaint." Bolden v. City
of Topeka, 441 F.3d 1129, 1148 (10th Cir. 2006). In this
case, it is undisputed that the complaint was filed on
October 8, 2018, that the 90-day service period expired on
Monday, January 7, 2019, and that service was accomplished
one day later.
defendant is not served within 90 days, "the court . . .
must dismiss the action without prejudice against that
defendant or order that service be made within a specified
time." Fed.R.Civ.P. 4(m). Rule 4(m) makes clear that
"if the plaintiff shows good cause for the failure, the
court must extend the service time for an appropriate
period." Id. However, "[e]ven if a
plaintiff does not establish good cause," the court
"may in its discretion grant an extension of time for
service." San Giacomo-Tano v. Levine. No.
98-2060, 1999 WL 976481, at *1 (4th Cir. 1999) (unpublished
table opinion); see also Henderson v. United States,
517 U.S. 654, 658 n.5 (1996) (noting that Rule 4(m)
"permits a district court to enlarge the time for
service 'even if there is no good cause shown'")
(quoting Advisory Committee Notes to Rule 4(m) (1993
their respective filings, the parties dispute whether Mason
has established good cause for failing to serve the defendant
within the 90-day period. "Generally, for purpose of
Rule 4(m), 'good cause' requires some showing of
diligence on the part of the plaintiff." Attkisson
v. Holder, __F.3d __, 2019 WL 2147243, at *16 (4th Cir.
May 17, 2019). "Put conversely, good cause generally
exists when the failure of service is due to external
factors, such as the defendant's intentional evasion of
present record, the court is not convinced that Mason has
established good cause for failing to make timely service.
According to the plaintiffs own evidence, his process server
did not attempt to serve the defendant's registered agent
until January 3, 2019-only four days before the service
deadline. Although the evidence also indicates that the
registered agent failed to return two subsequent phone calls,
there is no indication that this was part of a concerted
effort to evade service of process. Indeed, the record
reflects that the process server successfully served the
registered agent on her second visit to his office. Thus, it
appears likely that the current dispute could have been
avoided had the plaintiff not waited until the end of the
90-day period to serve the defendant.
as indicated above, the court may exercise its discretion to
extend the service period even in the absence of good cause.
Under the circumstances presented, the court finds it
appropriate to do so in this case. There is simply no basis
for the court to conclude that extending the service period
by one day would unduly prejudice the defendant. See Cell
Film Holdings. LLC v. Does. No. 3:16-cv-00749, 2016 WL
7494319, at *5 (E.D. Va. Dec. 30, 2016) ("Because this
case remains in an early stage of litigation, in which [the
defendant] has not filed an answer or other responsive
pleading, the Court sees no prejudice that could result from
a brief extension of time."). On the other hand,
granting the defendant's motion to dismiss would likely
result in Mason's claims being time-barred, since
plaintiffs are required to file suit under Title VII and the
ADEA within ninety days after the issuance of a right-to-sue
letter by the EEOC. See 42 U.S.C. § 2000e-5(f)(1); 29
U.S.C. § 626(e); see also Mann v. Std. Motor Prods..
Inc..532 Fed.Appx. 417, 418 (4th Cir. 2013) (explaining
that a dismissal without prejudice does not toll the
ninety-day statute of limitations period). The Advisory
Committee Notes to Rule 4(m) specifically recognize that a
discretionary extension may be ...