Opinion
Civil No. JFM-03-2582
March 15, 2004
MEMORANDUM
Defendant has filed a motion to dismiss. The motion will be granted for the following reasons.
First, plaintiff failed to effect service on defendant within the 120 time period required by Fed.R.Civ.P. 4(m). Although I previously entered an order authorizing plaintiff to serve defendant outside of the 120 period, the record now makes clear that plaintiff failed to show good cause for extending the time for service. "[I]t is well-established that in order to show good cause, a plaintiff must demonstrate that he '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) (citations omitted). In this case plaintiff has not shown that she made any efforts to serve defendant prior to the expiration of the 120 period. The only excuse she has given for non-service was that her attorney waited until the last minute before requesting the process server to serve defendant and that the process server did not do his job. That excuse does not constitute "good cause" within the meaning of Rule 4(m). Burns Russell Co. of Baltimore v. Oldcastle, Inc., 166 F. Supp.2d 432, 439 (D. Md. 2001).
I erred in entering my order extending the time for service since I should have done so only "if the plaintiff show[ed] good cause for the failure [to effect service within 120 days]." However, I was then presented with only an ex parte presentation by plaintiff. The record is now clear that there was no good cause for plaintiff's failure to effect service. My error in entering the ruling did not affect plaintiff's rights because, if I had denied her request to extend the time for service, the action would have been dismissed at that time.
Second, plaintiff's action is now barred by limitations. According to plaintiff's allegations in the Complaint, she received a right to sue letter from the EEOC on June 12, 2003. This suit was instituted 88 days thereafter within the 90 day time period required under Title VII. However, limitations began to run again after the 120 day period for service under Rule 4(m) expired. See, e.g., Fraca v. United States, 921 F.2d 450, 453 (2d Cir. 1990); McGregor v. United States, 933 F.2d 156, 161 (2d Cir. 1991); Arabian v. Bowen, 1992 U.S. App. LEXIS 15624 at *6-7 (4th Cir. July 7, 1992); Kramer v. Jotun Paint, Inc., 183 F. Supp.2d 795, 798 (D. Md. 2002); vacated on other grounds, 206 F. Supp.2d 732 (D. Md. 2002). Service was not made until 5 days after the expiration of the 120 day period and more than 90 days after plaintiff received notice of the right to sue letter.
In her opposition memorandum, plaintiff states that her allegation that she received the EEOC's decision on or about June 12, 2003 was a typographical error. She asserts that she meant to allege the date June 11, 2003, and that she is entitled to the benefit of the three day "mailbox rule" in computing when she received notice. I would be hesitant to relieve plaintiff of a specific admission that she has made in her complaint on a matter that is of such importance. See generally Lucas v. Burnley, 879 F.2d 1240, 1242 (4th Cir. 1989). However, even if the June 14, 2003 date proposed by plaintiff is used as the date on which plaintiff received the right to sue letter, she still served defendant outside of the limitations period.
Although the Arabian case is unpublished, it has been properly cited by defendant pursuant to Fourth Circuit Local Rule 36(c).
A separate order granting defendant's motion is being entered herewith.
ORDER
For the reasons stated in the accompanying memorandum, it is, this 15th day of March 2004ORDERED
1. Defendant's motion to dismiss is granted; and
2. This action is dismissed.