                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1315
                                   ___________

Angelo Colasante,                     *
                                      *
            Plaintiff-Appellant,      *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Southern District of Iowa.
Wells Fargo Corporation, doing        *
business as Wells Fargo National      *      [UNPUBLISHED]
Home Equity Group, Inc.,              *
                                      *
            Defendant-Appellee.       *
                                 ___________

                             Submitted: October 24, 2003

                                 Filed: November 20, 2003
                                  ___________

Before LOKEN, Chief Judge, LAY and HEANEY, Circuit Judges.
                              ___________

PER CURIAM.

       In June of 2000, Angelo Colasante filed a claim with the Equal Employment
Opportunity Commission (“EEOC”) alleging that he had been subjected to persistent
unwelcome sexual advances by a female supervisor at his place of employment, Wells
Fargo Bank, N.A. (“Wells Fargo”). On February 7, 2002, the EEOC granted
Colasante an administrative release, giving him ninety days in which to file a civil
action against Wells Fargo. See 42 U.S.C. § 2000e-5(f)(1). On May 7, 2002, one day
before his federal right to sue on the claim was set to expire, Colasante filed a
complaint against Wells Fargo in the United States District Court for the Southern
District of Iowa.1

       On September 2, 2002, 118 days after filing the complaint, Colasante made
arrangements with an out-of-state process server to serve Wells Fargo at its corporate
headquarters in San Francisco. The process server did not effect proper service until
10:45 a.m. on September 5, 2002, 121 days after filing the complaint. Shortly
thereafter, Wells Fargo filed a motion to dismiss the complaint as untimely pursuant
to Fed. R. Civ. P. 4(m).2 Following a hearing on Wells Fargo’s motion, the district
court determined that Colasante had demonstrated neither good cause nor excusable
neglect for his failure to serve process within the 120 days mandated by Rule 4(m),
and entered an order dismissing the complaint without prejudice. Since Colasante’s
right to sue under § 2000e-5(f)(1) had expired, however, the dismissal effectively
terminated his claim against Wells Fargo. Colasante now appeals, and we affirm.

      Under Rule 4(m), a district court must engage in a two-step analysis of motions
to dismiss a complaint premised upon untimely service of process. First, it must
inquire whether the plaintiff has demonstrated good cause for his failure to serve
within the prescribed 120-day period. If the district court concludes that good cause


      1
      The Honorable James E. Gritzner, United States District Court for the
Southern District of Iowa.
      2
          Rule 4(m) of the Federal Rules of Civil Procedure provides in relevant part:

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

                                           -2-
is shown, it must extend the time for service. See Fed. R. Civ. P. 4(m) (stating that
“if the plaintiff shows good cause for the failure, the court shall extend the time for
service for an appropriate period”); see also Adams v. AlliedSignal Gen. Aviation
Avionics, 74 F.3d 882, 887 (8th Cir. 1996). Second, if good cause is not shown, the
district court still retains the discretion to grant an extension of the time for service.
Adams, 74 F.3d at 887. To warrant such a permissive extension, a plaintiff must
demonstrate excusable neglect. Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d
932, 934 (7th Cir. 2002). A district court’s findings at each step of the analysis will
not be set aside absent an abuse of discretion. Adams, 74 F.3d at 887.

        Colasante argues that the district court erroneously concluded that he had not
demonstrated good cause for his failure to timely serve Wells Fargo. In support of
his claim, Colasante points to the following considerations: 1) Colasante’s counsel
often experienced difficulty in communicating with Colasante, as the latter lived in
California and was involved in bankruptcy proceedings during the pendency of this
litigation; 2) Colasante’s failure to effect timely service was marginal, occurring only
one day after the 120-day deadline; 3) Wells Fargo was aware of the existence of the
lawsuit and would suffer no prejudice if an extension were granted; and 4) a dismissal
would effectively terminate Colasante’s claim.

      There is no comprehensive definition of what constitutes good cause sufficient
to warrant a mandatory extension under Rule 4(m). It has been stated that “[a]
showing of good cause requires at least ‘excusable neglect’–good faith and some
reasonable basis for noncompliance with the rules.” Id. At its core, however, the
standard of good cause, like many others in the law, is necessarily amorphous.
Whether or not it has been satisfied is largely dependent upon the facts of each
individual case. It is for this very reason that such a determination is entrusted to the
sound and considerable discretion of the district court in the first instance.




                                           -3-
       Under the circumstances of this case, we cannot say that the district court’s
dismissal was an abuse of discretion. Upon questioning by the district court,
Colasante could offer no legitimate reason why he waited until 118 days after filing
the complaint to arrange for service of process. Although he made veiled references
to communication problems with his attorney, Colasante conceded that he did not ask
the district court for an extension of the deadline in which to serve Wells Fargo.
Instead, Colasante stressed his reliance upon an out-of-state process server to see that
service was made in a timely manner. This is insufficient to demonstrate good cause.
See Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1307 (3d Cir. 1995).

       We are similarly unable to say that the district court’s conclusion that
Colasante failed to demonstrate excusable neglect was an abuse of discretion. The
district court carefully considered the reasons set forth by Colasante in support of a
permissive extension of the deadline for service. Foremost among these was that a
dismissal, while purporting to be without prejudice, would have effectively barred
Colasante’s claim against Wells Fargo. “However, ‘the running of the statute of
limitations does not require the district court to extend time for service of process.’”
Adams, 74 F.3d at 887 (quoting Petrucelli, 46 F.3d at 1306). This is all the more true
when the plaintiff can offer no legitimate reason for the untimely service of process.3


      3
      During the hearing on Wells Fargo’s motion to dismiss the complaint,
Colasante admitted to the district court that:

      There are dynamics in the attorney-client relationship sometimes that
      make cutting it close a little too uncomfortable, and this is one of the
      occasions where, if I had a chance to do it over, I would get a more
      comfortable time frame in which to serve the defendant. Nonetheless,
      there was reliance upon a process server. I realize there are cases that
      say that’s too bad . . . but I’m not going to lie to the court and try to
      come up with a good excuse. That’s the facts as they are.

(Tr. of Hr’g at 11-12).

                                          -4-
       Where a dismissal without prejudice has the actual effect of terminating a
plaintiff’s claim, as is the case here, a strong argument may be made for a permissive
extension, at least when such an extension would cause little or no prejudice to the
defendant. Had the matter been addressed to us in the first instance, we may have
granted Colasante a brief extension in the time for service. But it is not our duty to
substitute our judgment for that of the district court. As Judge Posner has rightly
stated:

      Where as in this case the defendant does not show any actual harm to its
      ability to defend the suit as a consequence of the delay in service . . . ,
      and where moreover dismissal without prejudice has the effect of
      dismissal with prejudice because the statute of limitations has run since
      the filing of the suit . . . , most district judges probably would exercise
      lenity and allow a late service, deeming the plaintiff’s failure to make
      timely service excusable by virtue of the balance of hardships. But the
      cases make clear that the fact that the balance of hardships favors the
      plaintiff does not require the district judge to excuse the plaintiff’s
      failure to serve the complaint and summons within the 120 days
      provided by the rule. It does not abolish his discretion.

Coleman, 290 F.3d at 934. In this case, the district court found that Colasante’s
untimely service was attributable to an inattention to procedural rules, and we find
nothing in the record to suggest otherwise.

      For the foregoing reasons, the judgment of the district court is AFFIRMED.
                      ______________________________




                                         -5-
