19-416-cv
Harmon v. Bogart, et al

                               UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 26th day of December, two thousand nineteen.

PRESENT:            JOSÉ A. CABRANES,
                    GERARD E. LYNCH,
                                            Circuit Judges,
                    CHRISTINA REISS,
                                            District Judge.*


JAMES HARMON,

                          Plaintiff-Appellant,                           19-416-cv

                          v.

MARNI BOGART, COUNTY OF ERIE, NEW YORK,

                          Defendants-Appellees.


FOR PLAINTIFF-APPELLANT:                                       GERALD T. WALSH, Zdarsky, Sawicki &
                                                               Agostinelli LLP, Buffalo, NY.

FOR DEFENDANTS-APPELLEES:                                      ANN E. EVANKO, Hurwitz & Fine, P.C.,
                                                               Buffalo, NY.



     *
     Judge Christina Reiss, of the United States District Court for the District of Vermont, sitting by
designation.

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       Appeal from a February 8, 2019 judgment of the United States District Court for the
Western District of New York (William M. Skretny, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

         Plaintiff-Appellant James Harmon (“Harmon”) challenges the dismissal of his complaint for
failure to timely serve Defendants-Appellees Marni Bogart and the County of Erie, New York. We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.

         Rule 4(m) of the Federal Rules of Civil Procedure provides guidance for how a District
Court may handle a plaintiff’s failure to make proper service of process. Ordinarily, “[i]f a defendant
is not served within 90 days after the complaint is filed, the court . . . must dismiss the action
without prejudice against that defendant.” FED. R. CIV. P. 4(m).

        However, Rule 4(m) also provides two ways in which a District Court may grant an
extension to a plaintiff who has failed to timely serve process. First, it states that if service is not
made within ninety days, the District Court may “order that service be made within a specified
time.” Id. This provision gives District Courts discretion to grant an extension if they deem it
appropriate. See, e.g., Zapata v. City of New York, 502 F.3d 192, 197 (2d Cir. 2007) (noting that this first
clause of Rule 4(m) “commits extensions . . . to the sound discretion of the district court”). Second,
Rule 4(m) states that “if the plaintiff shows good cause for the failure [of service], the court must
extend the time for service for an appropriate period.” FED. R. CIV. P. 4(m). This provision requires
District Courts to grant an extension if the aforementioned “good cause” is shown.1

       Harmon argues that the District Court erred in two ways: first, in determining that no “good
cause” existed to justify a mandatory extension of the time period for serving Defendants-Appellees;


    1
     It is worth noting that, although an extension is required when the District Court finds “good
cause,” it is not mandatory that the District Court undertake a specific type of inquiry when looking
for “good cause.” As we have said:

    [i]t is clear under the second clause of Rule 4(m) that an extension is always warranted upon a
    showing of “good cause,” because the rule commands that an “appropriate” extension “shall” be
    granted upon such a showing. But it is perhaps misleading to describe the provision as
    “mandatory.” After all, the district court’s determinations on whether good cause is present
    (and, if so, how long an extension would be appropriate) are exercises of discretion.

Zapata, 502 F.3d at 197.

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second, in failing to properly consider those factors that would justify a discretionary extension even
absent “good cause.” We disagree with both arguments, finding that the District Court properly
dismissed the complaint for failure to make timely service.

         “We review for an abuse of discretion a district court’s Rule 4(m) dismissal for failure to
serve process.” Zapata, 502 F.3d at 195. “A district court has abused its discretion if it has (1) based
its ruling on an erroneous view of the law, (2) made a clearly erroneous assessment of the evidence,
or (3) rendered a decision that cannot be located within the range of permissible decisions.” Gerena v.
Korb, 617 F.3d 197, 201 (2d Cir. 2010) (quoting Lynch v. City of New York, 589 F.3d 94, 99 (2d Cir.
2009)).

         First, we conclude that the District Court reasonably found that Harmon lacked good cause
for his failure to serve process. Harmon’s attorney admitted his error, noting in a declaration to the
District Court that the failure to serve process was “[d]ue to my forgetfulness.” App. 40. The
attorney further noted that the failure to serve process was a “mistake” for which he was “solely
responsible.” Id. Only after making such admissions did he offer alternative excuses for Harmon’s
deficient service. Id. at 41-42.

        We have previously concluded that “attorney neglect” does not constitute good cause
sufficient for an extension of the period to make service. McGregor v. United States, 933 F.2d 156, 160
(2d Cir. 1991) (deciding that such neglect was not good cause under Rule 4(j), the immediate
predecessor to Rule 4(m)). Since Harmon’s attorney in this case was, according to his own
statements, negligent, we conclude that Harmon failed to show the good cause necessary to trigger a
mandatory extension of the filing period for service of process. Accordingly, the District Court did
not abuse its discretion in deciding that Harmon lacked “good cause.”

         Second, we conclude that the District Court reasonably denied Harmon a discretionary
extension under Rule 4(m). “As we have held, a district court may grant an extension in the absence
of good cause, but it is not required to do so.” Zapata, 502 F.3d at 197. Harmon argues that such a
discretionary extension was especially warranted in his case because once his complaint was
dismissed, he was barred from refiling it. In his case, even though his complaint was dismissed
without prejudice—as Rule 4(m) requires—the underlying statute of limitations on his claim had
run, meaning that the dismissal was effectively permanent. We have noted that when the statute of
limitations has run “the district courts [must] decide on the facts of each case how to weigh the
prejudice to the defendant that arises from the necessity of defending an action after both the
original service period and the statute of limitations have passed before service.” Id. at 198. An
expired statute of limitations thus does not always warrant a discretionary extension, as that decision
is committed to the “sound discretion of the district court.” Id. at 197.

        Here, the District Court clearly weighed, on the record, the impact that a dismissal or an
extension would have on the parties before ordering a dismissal. There was no error in how it

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conducted such a balancing, particularly because, “in the absence of good cause, no weighing of the
prejudices between the two parties can ignore that the situation is the result of the plaintiff’s
neglect.” Id. at 198. Accordingly, since the District Court acted well within the discretion granted to
it, we do not find an abuse of discretion in its refusal to grant an extension to Harmon.

                                          CONCLUSION

        We have reviewed all of the arguments raised by Harmon on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the February 8, 2019 judgment of the
District Court.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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