                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-25-1997

Boley v. Kaymark
Precedential or Non-Precedential:

Docket
96-3573




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Recommended Citation
"Boley v. Kaymark" (1997). 1997 Decisions. Paper 205.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/205


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Filed August 25, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-3573

WAYNE E. BOLEY,
       Appellant,

v.

DALE KAYMARK,

On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. No. 95-cv-01018)

Argued: June 3, 1997

Before: BECKER, SCIRICA, Circuit Judges, and
SCHWARZER,* Senior District Judge.

(Filed August 25, 1997)

       ANDREW J. CONNER, ESQUIRE
        (ARGUED)
       Conner & Riley
       17 West Tenth Street
       Erie, PA 16501

Attorney for Appellant
Wayne E. Boley



_________________________________________________________________

*Honorable William W Schwarzer, Senior United States District Judge for
the Northern District of California, sitting by designation.



       MICHAEL A. CHAGARES, ESQUIRE
        (ARGUED)
       MICHAEL C. TURZAI, ESQUIRE
       Houston Harbaugh, P.C.
       Twelfth Floor
       Two Chatham Center
       Pittsburgh, PA 15219

       Attorneys for Appellee
       Dale Kaymark
OPINION OF THE COURT

SCHWARZER, Senior District Judge.

The question before us is whether the district court
abused its discretion in denying plaintiff's motion under
Fed. R. Civ. P. 4(m) for additional time to serve process.

PROCEDURAL HISTORY

On July 6, 1993, defendant Dale Kaymark allegedly
injured plaintiff Wayne E. Boley in an automobile collision
in Beaver County, Pennsylvania. Almost two years later, on
July 3, 1995, Boley filed a complaint in the United States
District Court for the Western District of Pennsylvania.1
Two days after filing the complaint Boley attempted to serve
Kaymark by sending a copy of the complaint and summons
to his home address via certified mail. The mailing did not
include the forms necessary for Kaymark to waive personal
service under Fed. R. Civ. P. 4(d). Absent a waiver, the
Federal Rules require either personal service or, pursuant
to Fed. R. Civ. P. 4(e)(1), service that complies with state law.2
Boley, however, made no further attempt to perfect service
within the 120-day period required by Fed. R. Civ. P. 4(m).
_________________________________________________________________

1. Pennsylvania's statutory period for bringing a personal injury action
is
two years. 42 Pa. Cons. Stat. S 5524(2).

2. Boley's attempted service by mail was insufficient under Pennsylvania
law. See Pa. R. Civ. P. 400, 403.

                                2



On February 22, 1996, Kaymark moved to dismiss
Boley's complaint under Fed. R. Civ. P. 12(b)(5) for failure
to serve process within 120 days.3 On March 4, 1996, Boley
moved the court for an extension of time to serve pursuant
to Fed. R. Civ. P. 4(m). The district court denied Boley's
motion to extend time and granted Kaymark's motion to
dismiss the complaint on August 29, 1996. Boley timely
filed this appeal.4 The district court had jurisdiction under
28 U.S.C. S 1332, and we have appellate jurisdiction
pursuant to 28 U.S.C. S 1291.

DISCUSSION

We review the district court's denial of a Rule 4(m)
motion to extend time to serve for abuse of discretion.
Ayers v. Jacobs & Crumplar, P.A., 99 F.3d 565, 568 (3d Cir.
1996). The determination whether to extend time involves a
two-step inquiry. Petrucelli v. Bohringer & Ratzinger, 46
F.3d 1298, 1305 (3d Cir. 1995). The district courtfirst
determines whether good cause exists for a plaintiff's
failure to effect timely service. If good cause exists, the
extension must be granted. Id.; see also , Fed. R. Civ. P.
4(m). If good cause does not exist, the district court must
consider whether to grant a discretionary extension of time.
MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086,
1098 (3d Cir. 1995), cert. denied, 117 S. Ct. 64 (1996).
_________________________________________________________________

3. In response to Kaymark's motion to dismiss, Boley twice attempted
service by mailing to Kaymark's residence additional copies of the
complaint and summons, along with the waiver form. Apart from being
untimely, the mailings did not effect service because Kaymark did not
execute and return the waiver.

4. On September 9, 1996, Boley filed a motion for relief from judgment
under Fed. R. Civ. P. 60(b)(1) and (6). On October 7, Kaymark filed its
opposition. Meanwhile, on September 26, Boley filed his notice of appeal.
The district court did not rule on the motion. In his brief, Boley has
appended a copy of his motion together with the attached exhibits,
which were not a part of the record before the district court when it
ruled on the motion to dismiss. We grant Kaymark's motion to strike
those portions of Boley's motion that were not before the district court.
See Fed. R. App. P. 10(a); Petrucelli v. Bohringer and Ratzinger, 46 F.3d
1298, 1307 n.12 (3d Cir. 1995); Martin v. Merrell Dow Pharmaceuticals,
Inc., 851 F.2d 703, 706 n.2 (3d Cir. 1988).

                                3



A. Mandatory Extension for Good Cause

The district court found that good cause had not been
shown for Boley's failure to effect timely service. In
determining whether good cause exists, a court's "primary
focus is on the plaintiff's reasons for not complying with
the time limit in the first place." Id. at 1097. Nothing in the
record before the district court justified Boley's ineffective
attempts at service and his failure to make a timely motion
for an extension of time; as in MCI, the district court was
"presented with no explanations as to what, if any,
circumstances constitute sufficient `good cause' to excuse
[plaintiff 's] apparent lack of diligence." Id. The district court
therefore did not abuse its discretion in finding that good
cause had not been shown.

B. Discretion to Extend Time for Service

The district court acknowledged that even in the absence
of good cause, Rule 4(m) gives it discretion to extend the
time for service. See Petrucelli, 46 F.3d at 1307. It said:
       The Court notes that even in the absence of good cause
       we may either dismiss the case without prejudice or
       extend time for service. The Court declines to grant an
       extension because of Boley's inexcusable delays and
       the prejudice such an extension would impose on
       Kaymark.

The court's summary statement in effect recapitulates its
reasons for finding lack of good cause. That finding was
proper for the reasons that (1) Boley had offered no
explanation for his delay in making service, and (2) the
running of the statute of limitations is not a proper
consideration in determining whether good cause exists.
Petrocelli, 46 F.3d at 1306. It does not follow, however, that
the finding reflects a proper analysis under the
discretionary step of Rule 4(m).

That Boley's delays were inexcusable, of course, merely
reiterates the substance of the finding of no good cause and
standing alone does not reflect an exercise of the discretion
Rule 4(m) gives the court to extend time to serve in the
absence of good cause. See MCI, 71 F.3d at 1098-99
(granting a discretionary extension on a record devoid of a

                                4



showing by plaintiff of good cause). Critical to that finding
was Boley's lack of explanation. See id. at 1097 ("absence
of prejudice alone can never constitute good cause"). In its
discretionary analysis, however, the court relied on its
finding of prejudice to Kaymark, premised on the fact that,
were an extension of time to effect service given to Boley,
Kaymark would lose the benefit of the running of the
statute of limitations.

In drafting the amendment of Rule 4(m), the Advisory
Committee plainly had in mind, as its Notes state,
"authoriz[ing] the court to relieve a plaintiff of the
consequences of an application of this subdivision even if
there is no good cause shown. . . . Relief may be justified,
for example, if the applicable statute of limitations would bar
the refiled action . . . ." Fed. R. Civ. P. 4(m) Adv. Comm.
Notes (1993) (emphasis added). Interpreting this rule, under
which the court may extend the time for service to avoid
the bar of limitations, to authorize the court to refuse to
extend it so the defendant may gain the benefit of that bar
appears to us to be inconsistent with its purpose. See, e.g.,
Goodstein v. Bombardier Capital, Inc., 167 F.R.D. 662, 666-
67 (D. Vt. 1996) (extending time in part to prevent
plaintiff 's case from being barred). We are aware of no
decisions refusing to grant an extension to serve under
Rule 4(m) solely on the ground that denying the defendant
the benefit of the running of the statute of limitations
amounts to cognizable prejudice.

That is not to say that the failure to make timely service
may not prejudice a defendant. Delay may damage a
defendant's ability to defend on the merits. See, e.g., Gowan
v. Teamsters Union (237), 170 F.R.D. 356, 360 (S.D.N.Y.
1997) (witness might not be available to testify and
evidence was probably destroyed); Shaw v. Rolex Watch
U.S.A. Inc., 745 F. Supp. 982, 988 (S.D.N.Y. 1990) (without
ruling on prejudice, court noted that named defendant died
in the interim). In other contexts, as well, findings of
prejudice have been limited to circumstances in which
delay impaired a defendant's ability to defend. See, e.g.,
Nelson v. County of Allegheny, 60 F.3d 1010, 1014-15 (3d
Cir. 1995) (under Rule 15(c), prejudice depended on
whether defendant for lack of notice would have to

                                5



assemble evidence when case was already stale) cert.
denied, 116 S. Ct. 1266 (1996); Feliciano v. Reliant Tooling
Co., 691 F.2d 653, 657 (3d Cir. 1982) (under Rule 60(b), no
prejudice absent loss of available evidence or "increased
potential for fraud or collusion"). Moreover, actual notice to
a defendant that an action was filed militates against a
finding of prejudice. See, e.g., Dominic v. Hess Oil V.I. Corp.,
841 F.2d 513, 517 (3d Cir. 1988) (no prejudice to defendant
under Rule 4(j) where defendant had actual notice of
plaintiff 's claim and facts on which it was grounded); see
also, Benjamin v. Grosnick, 999 F.2d 590, 592 (1st Cir.
1993) (no prejudice under Rule 4(j) where defendant had
actual notice of lawsuit); Spencer v. Steinman, ___ F. Supp.
___, 1997 WL 359028, *3 (E.D. Pa. June 24, 1997) (noting
that actual notice "is crucial" to determining prejudice to
the defendant); Myers v. Secretary of the Dep't. of the
Treasury, ___ F.R.D. at ___, 1997 WL 306839 at *5 (E.D.N.Y
June 4, 1997) (rejecting prejudice when evidence showed
defendant had been involved in settling merits claim). Here,
it is not disputed that Kaymark was sent a copy of the
complaint only two days after it was filed, and he makes no
claim of lack of actual notice.

District courts have consistently interpreted Rule 4(m) in
the same way, treating the running of the statute of
limitations as a factor favoring the plaintiff and not as a
basis for potential prejudice to the defendant. See, e.g.,
Mason Tenders Dist. Council Pension Fund v. Messara, 1997
WL 221200 *4-5 (S.D.N.Y. April 1, 1997); Rose v. Forbes
Metro. Hosp., 72 Fair Empl. Prac. Cas. (BNA) 549, 1996 WL
752530, *2-3 (W.D. Pa. Oct. 18, 1996); National Union Fire
Ins. Co. v. Forman 635 Joint Venture, 1996 WL 272074, *3
(S.D.N.Y. May 21, 1996); Binicewicz v. General Elec. Co.,
1995 WL 628425, *2-3 (N.D. Ill. Oct. 25, 1995); Pickney v.
Sheraton Soc'y Hill, 1994 WL 376862, *3 (E.D. Pa. July 15,
1994); Williams v. United Parcel Serv., 1991 WL 264651, *2
(N.D. Ill. Dec. 9, 1991).

We conclude that while the running of the statute of
limitations is a factor supporting the discretionary granting
of an extension of time to make service under Rule 4(m), it
is not a factor that standing alone supports a finding of
prejudice to the defendant. As stated by one district court,

                                6



prejudice "involves impairment of defendant's ability to
defend on the merits, rather than foregoing such a
procedural or technical advantage." National Union Fire Ins.
Co. v. Barney Assoc., 130 F.R.D. 291, 294 (S.D.N.Y. 1990).

The district court, of course, retains discretion to refuse
to extend time, even if the statute of limitations has run.
See Petrucelli, 46 F.3d at 1306 ("a district court may in its
discretion still dismiss the case, even after considering
that . . . the refiling of an action is barred"). See, e.g.,
Adams v. Allied Signal Gen. Aviation Avionics, 74 F.3d 882,
887-88 (8th Cir. 1996) (refusing a discretionary extension of
time to serve despite the running of the statute of
limitations). In this case, however, the court's exercise of its
discretion was premised on an erroneous finding of
prejudice.

Because we do not know what choice the district court
would have made had it correctly considered the relevant
factors bearing on the exercise of discretion, see United
States v. Monaco, 23 F.3d 793, 799 (3d Cir. 1994); Lieb v.
Topstone Indus. Inc., 788 F.2d 151, 153 (3d Cir. 1986), we
VACATE the order and REMAND for further proceedings
consistent with this opinion. On remand the district court
may find it appropriate to augment the record on the
parties' motion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                7
