The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge
Plaintiff Bobbie Jo Matkin moves the Court for an extension of time to serve process (Dkt. No. 2). Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.
The Complaint was filed November 19, 2010 (Dkt. No. 1). The motion for an extension of time to serve the Complaint was filed on April 22, 2011. The Federal Rules provide that service shall occur within 120 days after the complaint is filed. Fed. R. Civ. P. 4(m). Rule 4(m) states:
Time Limit for Service. If a defendant is not served within 120 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. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1).
The question in this case is what standard the Court should apply to determine if "good cause" has been shown. Pursuant to Fed. R. Civ. P. 6(b), the good cause standard for an extension is different if the request for an extension is made prior to the deadline versus after the deadline.
(1) In General. When an act may or must be done withing a specified time, the court may, for good cause, extend the time:
(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or
(B) on motion made after the time has expired if the party failed to act because of excusable neglect.
(2) Exceptions. A court must not extend the time to act under Rules 50(b) and(d), 52(b), 59(b), (d) and (e), and 60(b).
Clearly, Plaintiff is seeking the enlargement of time after the specified deadline to complete service so the standard the Court must apply to determine if the motion is for good cause this request is the "excusable neglect" standard. "[T]he general rule is that a mistake of law does not constitute excusable neglect." Kyle v. Campbell Soup, 28 F.3d 928, 932 (9th Cir. 1994). Misconception of a non-ambiguous rule cannot constitute excusable neglect to justify an extension of time. Committee for Idaho's High Desert v. Yost, 92 F.3d 814, 824 (9th Cir. 1996). The Supreme Court has held that excusable neglect is a flexible and equitable concept based on the specific facts of each case. Pioneer Inv. Servs. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993). However, the Supreme Court went on to state "inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute 'excusable neglect.'" Id. at 387.
In evaluating whether neglect is excusable, a district court must consider the four factors established by the Supreme Court in Pioneer: "(1) the danger of prejudice to the non-moving party, (2) the length of delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the moving party's conduct was in good faith." Id. at 395. The Ninth Circuit has interpreted Pioneer to mean there is no per se rule and the district court should weigh the four equitable factors based on the circumstances presented in each case. Pincay v. Andrews, 389 F.3d 853 (9th Cir. 2004).
In the present case, counsel has been forthright with the Court in explaining the reason for the delay in service. His client needed additional time to raise funds to post any requested bond required by Idaho law and to retain an expert. Counsel states "so I was waiting to serve summons on a tactical basis." Dkt. No. 2-1. Counsel indicates the Plaintiff was not able to raise sufficient funds, so he began preparations to have the defendants served and noted the time under the rules had expired. Counsel argues the Court should exercise its discretion ...