United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
filed his First Amended Complaint in this case on June 20,
2016. Doc. 4. That same day, the court issued summons to all
defendants. The summons sent to Mark Furney was returned as
“Refused” on July 25, 2016. Doc. 26. So, on
January 30, 2017, the court ordered plaintiff to show cause
in writing, on or before February 13, 2017, why his claims
against Mr. Furney should not be dismissed for failing to
comply with Federal Rule of Civil Procedure 4(m). Doc. 46.
Plaintiff timely responded to the court's Order. Doc. 48.
Tenth Circuit has established a two-step inquiry for
evaluating a Plaintiff's failure to effect service timely
under Rule 4(m). Espinoza v. United States, 52 F.3d
838, 841 (10th Cir. 1995); Oklahoma ex rel. Bd. of
Regents v. Fellman, 153 F. App'x 505, 506-07 (10th
Cir. 2005). First, the court must determine whether a
plaintiff has shown good cause for failing to obtain
service-if so, then the plaintiff is entitled to an extension
of time to perfect service. Espinoza, 52 F.3d at
841. Second, if the plaintiff fails to show good cause, the
court still must decide whether a permissive extension of
time is warranted or whether the court should dismiss the
case without prejudice. Id.
establish good cause, a plaintiff must make a showing greater
than excusable neglect and “[s]imple inadvertence or
ignorance of the rules does not suffice.” Arey v.
Progressive Halcyon Ins. Corp., No. 05-2553-JWL, 2007 WL
1018798, at *2 (D. Kan. Apr. 3, 2007) (citing In re
Kirkland, 86 F.3d 172, 174 (10th Cir. 1996); further
citations omitted); accord Murphy v. City of Tulsa,
556 F. App'x 664, 668 (10th Cir. 2014). Rather,
“some showing of ‘good faith on the part of the
party seeking the enlargement and some reasonable basis for
noncompliance within the time specified' is normally
required.” In re Kirkland, 86 F.3d at 175
(quoting Putnam v. Morris, 833 F.2d 903, 905 (10th
Cir. 1987)). And, as our Circuit has recognized, “[t]he
plaintiff who seeks to rely on the good cause provision must
show meticulous efforts to comply with the rule.”
Id. at 176. Plaintiff, as the party seeking an
extension here, bears the burden of showing good cause for
failing to obtain service. Fed.R.Civ.P. 4(m); Riddle v.
Wichita Pub. Sch., Unified, Sch. Dist. No. 259, No.
04-1400-MLB, 2005 WL 1563444, at *4 (D. Kan. June 30, 2005).
contends that he has shown good cause for failing to serve
Mr. Furney because plaintiff has “been unable to
positively locate defendant Furney . . . despite reasonable
diligence.” Doc. 48 at 2. Plaintiff, however, relies
primarily on his efforts to serve the other defendants in
this case to establish good cause for Mr. Furney. For
instance, plaintiff contends that the court should grant him
an extension of time based “[u]pon numerous examples of
[his] attentiveness and efforts of effecting service upon all
other defendants, ” and his “promptness,
diligence, and pursuance . . . regarding properly effecting
service upon all other defendants.” Id. at 5.
But the court does not consider Plaintiff's efforts to
serve other defendants-it only considers Plaintiff's
efforts to serve Mr. Furney.
score, plaintiff contends that, “[b]etween both
defendant Furney and defendant Travis, [p]laintiff received
multiple consecutive returns of mail and therefore was
technically spending money for naught.” Id. at
4-5. But the docket in this case shows that plaintiff has
attempted to serve Mr. Furney just once, mailing a copy of
the summons and First Amended Complaint via certified mail on
July 1, 2016. Doc. 26. Plaintiff mailed this package to Mr.
Furney's former employer. Id. The package was
returned as “Refused” on July 25, 2016.
Id. Since then, plaintiff has not attempted to serve
Mr. Furney. So, plaintiff is now more than five months late
in complying with Rule 4(m), and it has been seven months
since plaintiff has taken steps to serve Mr. Furney.
nonetheless contends that he has shown good cause for failing
to serve Mr. Furney because he has searched through
publically available information, diligently, for Mr.
Furney's current address. Doc. 48 at 2. But plaintiff
does not contend that his search has been fruitless. Instead,
he asserts that his search has yielded too much fruit.
Plaintiff contends that his search uncovered several possible
addresses and places of employment for Mr. Furney, but that
he has been “unable to attempt serving” Mr.
Furney at the “plethora of addresses” he has
found “[d]ue to [a] lack of financial resources joined
with the difficulty [p]laintiff experienced [in] locating and
effecting service upon defendant Travis.” Id.
at 4-5. The difficulty plaintiff mentions includes three
attempts to serve Ms. Travis, culminating, finally, in
successful service during September 2016. Doc. 37. Plaintiff
avers that he found Ms. Travis by searching publically
available information, including her LinkedIn page, and
calling her previous employer. Doc. 48 at 3-4.
Plaintiff's efforts to locate and then serve Ms. Travis
evince a diligent and meticulous effort to comply with Rule
4(m), the court cannot say the same about Plaintiff's
efforts to locate and serve Mr. Furney. The court notes,
however, that it does not find any bad faith in
Plaintiff's failure to serve Mr. Furney-it just
doesn't find the requisite good cause. Plaintiff has
attempted to serve Mr. Furney only once and when that attempt
failed, plaintiff apparently took no more action than to
conduct an online search, which yielded results that
plaintiff never used.
the steps plaintiff took to locate Ms. Travis illuminates the
shortcomings of his assertion that good cause exists here.
For instance, plaintiff did not try to call Mr. Furney's
previous employer-the Public Defender's Office located in
Topeka, Kansas-to see if he could locate Mr. Furney in the
same way he located Ms. Travis. Cf. Putnam, 833 F.2d
at 905 (holding that plaintiff there had failed to show good
cause for an extension when the process server did not leave
a message at the defendant's home or attempt to call the
defendant). And, without something more-like a defendant
intentionally evading service-this court usually does not
find a Plaintiff's inability to locate a defendant
sufficient to establish good cause under Rule 4(m). See,
e.g., Wyandotte Nation v. City of Kan. City,
Kan., 200 F.Supp.2d 1279, 1300-01 (D. Kan. 2002)
(holding that the plaintiff failed to establish good cause
based on inability to locate unserved defendants); Slater
v. Cincinnati Ins. Co., 165 F.R.D. 100, 101-02 (D. Kan.
1996) (holding that the Plaintiff's excuse for failure to
serve-which was that, despite “its best efforts, and
those of the process server, ” the plaintiff could not
locate the defendant in time-was not sufficient to establish
good cause, especially in light of the fact that three months
passed without any effort by the plaintiff to locate the
defendant); Value Place Franchise Servs., LLC v. Hugh
Black-St. Mary's Enters., Inc., No. 14-1152-DDC-KGS,
2015 WL 225790, at *3 (D. Kan. Jan. 16, 2015) (declining to
consider whether inability to locate a defendant was
sufficient to establish good cause under Rule 4(m)). The
court thus finds Plaintiff's explanation insufficient to
constitute good cause.
this outcome, the court next considers whether it should
grant plaintiff a permissive extension of time to serve Mr.
Furney. “In determining whether to grant a permissive
extension, several factors are appropriate to consider,
including whether defendant was on notice of the lawsuit,
whether defendant has been prejudiced by delay of service,
and whether the applicable statute of limitations would bar
the refiling of the action.” Blackmon v. U.S.D. 259
Sch. Dist., 769 F.Supp.2d 1267, 1275 (D. Kan. 2011)
(citations omitted). Here, no evidence exists that Mr. Furney
is on notice of this lawsuit, and there is no reason to
believe the delay of service has prejudiced Mr. Furney. The
court is concerned, however, that the statute of limitations
might bar plaintiff from refiling this action against Mr.
Furney. Because the risk of prejudice to Mr. Furney as a
result of granting plaintiff an extension is low, and the
risk of forever barring Plaintiff's claims as a result of
denying an extension is high, the court exercises its
discretion and grants plaintiff an additional 30 days to
serve Mr. Furney. If plaintiff has not served Mr. Furney
within 30 days from the date of this Order, the court will
dismiss Plaintiff's First Amended Complaint for failure
to comply with Rule 4(m).
IS THEREFORE ORDERED THAT plaintiff is granted an
extension of time to serve defendant Mark Furney. Plaintiff
must serve Mr. Furney within 30 days from the date of this
Order. If plaintiff fails to serve Mr. Furney within this
time, the court will dismiss Plaintiff's claims against