United States District Court, D. Kansas
GWENDOLYN G. CARANCHINI, Plaintiff,
LOLA PECK, et al., Defendants.
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
October 16, 2018, Magistrate Judge Teresa J. James entered an
order requiring plaintiff Gwendolyn Caranchini to show cause
in writing to this court why service of summons and complaint
was not made in the case upon defendant Corizon within 90
days from the filing of the complaint and to show good cause
as to why the action against Corizon should not be dismissed.
On October 24, 2018, plaintiff filed her Reply to the United
States Magistrate's (Teresa J. James) Notice and Order to
Show Cause Why Defendant Corizon Should Not Be Dismissed
Without Prejudice (Doc. 108). Plaintiff claims that the
defense attorneys in this case have refused to meet with her
or talk on the phone to conduct informal discovery. Because
she has been unable to conduct informal discovery, she has
not been able to obtain information about Corizon in order to
serve them properly. She asks this court to order the Johnson
County Jail to produce a representative from Corizon so that
she may gather the necessary information to pursue her claims
Rule 4(m) of the Federal Rules of Civil Procedure, a
plaintiff has 90 days after the complaint is filed to serve a
defendant with the summons and complaint. If a defendant is
not served within 90 days, the court may dismiss the action
without prejudice or order that service be made within a
specified time. Fed.R.Civ.P. 4(m). If a plaintiff shows good
cause for the failure to serve the defendant within 90 days,
the court is required to extend the time for service.
Rule 4(m), the court must first determine whether plaintiff
has “shown good cause for the failure to timely effect
service.” Smyers v. Cnty. of Atchison, Kan.,
No. 07-2364-CM, 2008 WL 4822062 at * 1 (D. Kan. Nov. 4, 2008)
(citing Espinoza v. United States, 52 F.3d 838, 841
(10th Cir. 1995)). If the plaintiff fails to show good cause,
the court must “still consider whether a permissive
extension of time may be warranted.” Id.
good cause requirement of Rule 4(m) “should be read
narrowly to protect only those plaintiffs who have been
meticulous in their efforts to comply with the Rule.”
Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d
1436, 1438 (10th Cir. 1994). Inadvertence, negligence,
mistake of counsel, or ignorance of the rules do not usually
constitute “‘good cause' for failure of
timely service.” In re Kirkland, 86 F.3d 172,
176 (10th Cir. 1996). Avoiding or evading service of process
may constitute good cause for an extension of time. See
Hendry v. Schneider, 116 F.3d 446, 449 (10th Cir. 1997).
The inability to locate a defendant who is not hiding or
evading service, however, may be insufficient to warrant good
cause for an extension. See Slater v. Cincinnati Ins.
Co., 165 F.R.D. 100, 101 (D. Kan. 1996). Whether good
cause exists is committed to the discretion of the court.
Wyandotte Nation v. City of Kansas City, Kan., 200
F.Supp.2d 1279, 1301 (D. Kan. 2002).
plaintiff claims she has not served Corizon because she has
been unable to obtain any information on Corizon. She
maintains that the defense attorneys in the case have refused
to communicate with her in person or over the phone and have
therefore “stonewalled” her attempt at gathering
information about Corizon. She does note that she “did
research on Corizon before filing suit but was unable to come
up with even ‘obvious' information regarding
Corizon.” (Doc. 108, at 3.) Plaintiff does not allege
that Corizon is attempting to evade service; rather, it seems
plaintiff has not even attempted to serve anyone at Corizon.
Instead she blames defense attorneys for not assisting her in
identifying the proper parties to serve. Service of process
is the plaintiff's responsibility. Already-served
defendants have no duty to assist plaintiff with locating
other defendants. Plaintiff has not shown good cause for a
mandatory extension of time to serve Corizon under Rule 4(m).
Rule 4(m), the court may grant a permissive extension. In
deciding whether to grant a permissive extension, the court
may consider “whether the defendant would have been
prejudiced by an extension, whether it was on notice of the
lawsuit, and whether the applicable statute of limitations
would bar the refiled action.” Mehus v. Emporia
State Univ., 295 F.Supp.2d 1258, 1273 (D. Kan. 2004).
The court may decline to grant a permissive extension if it
finds the extension would be futile. See Lee v.
Reed, No. 16-2089-JAR-GLR, 2016 WL 3855527 at * 2 (D.
Kan. July 15, 2016).
filed her complaint on May 14, 2018 and has yet to serve
Corizon. In her response to the show cause order, plaintiff
provides little evidence that she has even attempted to serve
Corizon, and instead blames defense counsel for not assisting
her in obtaining necessary information. She claims she was
“denied the opportunity to get any information on
Corizon whatsoever and there is no information available for
them.” (Doc. 108, at 4.) But after conducting a basic
internet search, the court was easily able to locate a
website for Corizon, which included contact information and a
mailing address. The court is not implying that this internet
search reveals all of the necessary information to effectuate
valid service of process; the court simply brings attention
to this fact to show that plaintiff could have found basic
information on Corizon without the assistance of defense
six months has passed since the complaint was filed, and
there is no evidence Corizon has ever been on notice of this
litigation. And plaintiff has not shown she has even
attempted to serve Corizon. For these reasons, the court
finds dismissal without prejudice is warranted rather than a
IS THEREFORE ORDERED that defendant Corizon is
dismissed from ...