                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-1045


SILVIA G. MARTINEZ,

          Plaintiff – Appellant,

     v.

UNITED STATES OF AMERICA; UNITED STATES
POSTAL SERVICE,

          Defendants – Appellees.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Deborah K. Chasanow, Chief U.S.
District Judge. (8:13-cv-00237-DKS)


Submitted:   June 2, 2014                     Decided:   July 7, 2014


Before KING, DUNCAN, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kenneth J. Coughlan, ANNE HOKE & ASSOCIATES, Baltimore,
Maryland, for Appellant.    Rod J. Rosenstein, United States
Attorney, Jakarra J. Jones, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

        Silvia   Martinez      appeals        the       dismissal    of   her   claim    for

untimely service of process pursuant to Federal Rule of Civil

Procedure 4(m).           Although Martinez acknowledges that she did not

timely serve process, she argues that the district court erred

by failing to grant an extension of time required by Rule 4(m).

For the reasons that follow, we affirm.



                                              I.

        On January 23, 2013, Martinez filed a complaint against the

United      States    pursuant      to   the    Federal       Tort    Claims    Act.      28

U.S.C. §§ 2671, et seq.                  Her claim arose from an automobile

collision      with   a    United    States         Postal    Service     vehicle.       The

district court issued summonses the next day.                             On May 28, 125

days after the filing of the complaint, the district court had

received no proof that the complaint and summons had been served

on    the    United    States,      and       requested      a     status   report      from

Martinez      addressing     the    issue      of       service.     Martinez     did    not

respond.

        On June 13, the court ordered Martinez to show cause why

her   complaint       should   not       be    dismissed      for    failure    to     serve

process within the requisite time period.                          See Fed. R. Civ. P.

4(m).       On June 25, Martinez filed a memorandum in support of a

request for an extension of time.                       She stated that her attorney

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had changed his primary email address but had failed to register

the change in the court’s electronic case filing system (“ECF”)

and   therefore     had    not    been   informed            that   the   summonses     had

issued.     Martinez conceded that her attorney had been unaware of

the problem at the time, but asserted that he had subsequently

corrected    the     email       address.            The     district     court   granted

Martinez’s motion, allowing her 30 additional days, until July

30, to serve the United States.

      Martinez served the United States on August 15, twenty days

after the expiration of the extension.                           On November 18, the

United States moved to dismiss Martinez’s complaint for failure

to timely serve process.             Fed. R. civ. P. 12(b)(5).                    Martinez

filed a response claiming that she was entitled to a further

extension because the ECF continued to send notifications only

to her attorney’s incorrect email address, despite his diligent

attempts to correct this problem.                    The district court found that

Martinez could show neither good cause nor excusable neglect for

her   failure   to    serve,       and   granted           the   government’s     motion.

Martinez timely appealed.



                                         II.

      We   review    the     dismissal      of       a     complaint    for   failure   to

timely serve process for abuse of discretion.                             Shao v. Link



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Cargo (Taiwan) Ltd., 986 F.2d 700, 708 (4th Cir. 1993) (applying

Rule 4(m)’s predecessor, Rule 4(j)).



                                           III.

       Rule   4(m)   requires    a   plaintiff      to   serve   the   defendant

within 120 days.       A plaintiff may escape dismissal for failure

to timely serve process only if she demonstrates “good cause”

for the delay.       Fed R. Civ. P. 4(m).          If a plaintiff requests an

extension of time after the expiration of the 120 day limitation

period, she must also show that she “failed to act because of

excusable neglect.”      Fed.R.Civ.P. 6(b)(1)(B).

        Martinez acknowledges that she did not serve process within

the limitation period and that she did not request an extension

until    after   the   expiration     of    that    period.      Therefore,   to

prevail on appeal, Martinez must show both excusable neglect and

good cause.      Because Martinez cannot show excusable neglect, we

need not reach the question of good cause.

        Martinez argues that her failure to timely serve process

constitutes excusable neglect because it was the result of an

error within the ECF that was outside her control.               We disagree.

       “Excusable neglect is not easily demonstrated.”                  Thompson

v. E.I. DuPont de Nemours & Co., Inc., 76 F.3d 530, 533 (4th

Cir.     1996)   (internal      quotation       marks    omitted)(interpreting

excusable neglect in the context of Federal Rule of Appellate

                                            4
Procedure 4(a)(5)).              We have held that “a party that fails to

act    with          diligence   will   be   unable    to    establish     that       [her]

conduct          constituted       excusable   neglect.”           Robinson      v.    Wix

Filtration             Corp.,    LLC,    599    F.3d        403,   413     (4th       Cir.

2010)(interpreting excusable neglect as used in Federal Rule of

Civil Procedure 60(b)(1)). *

       Here, Martinez’s attorney was clearly aware that the ECF

was sending notifications to an improper email address before

the extension was granted.              Even if he believed he had fixed the

problem,         a    reasonably    diligent   attorney       would    have   monitored

that email address or the court’s docket until he was certain

that       the       ECF   was   functioning    properly.             Martinez    cannot

establish that her conduct constituted excusable neglect.                                We

therefore find no abuse of discretion in the district court’s

dismissal of her complaint.




       *
        Excusable neglect generally has the same meaning
throughout the federal procedural rules. See, e.g. Pioneer Inv.
Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S.
380, 392 (interpretation of excusable neglect as used in Federal
Rule of Bankruptcy Procedure 9006(b)(1) was “strongly supported”
by the meaning of excusable neglect as used in Federal Rule of
Civil Procedure 6(b)); Thompson, 76 F.3d at 534–35 (excusable
neglect interpreted the same in Federal Rule of Bankruptcy
Procedure 9006(b)(1) as in Federal Rule of Appellate Procedure
4(a)(5)).



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                                     IV.

     For      the   foregoing   reasons,   we     affirm    the   dismissal   of

Martinez’s claim.        We dispense with oral argument because the

facts   and    legal   contentions   are       adequately   presented    in   the

materials before this court and argument would not aid in the

decisional process.

                                                                        AFFIRMED




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