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Legal Memorandum: Extension of Time Period for Service of Process

Issue: When will the time period for service of process be extended under the Federal Rules of Civil Procedure?

Area of Law: Litigation & Procedure
Keywords: Service of process; Extension of time
Jurisdiction: Federal
Cited Cases: 123 F.3d 756
Cited Statutes: Fed. R. Civ. P. 4(m);
Date: 09/01/2004

Generally, a plaintiff has 120 days from the date of filing in which to serve process on a defendant.  Fed. R. Civ. P. 4(m).  However, when a plaintiff shows good cause for not making service within those 120 days, the court must extend the time for effecting service.  Id.  Good cause may be established when a defendant evades service or process.  See Dominic v. Hess Oil V.I., 841 F.2d 513, 516 (3d Cir. 1997).  Even if a plaintiff does not show good cause, however, the court may extend the time for effecting service.  See Boley v. Kaymark, 123 F.3d 756, 758 (3d Cir. 1997).  Significantly, the drafting Committee for Rule 4(m) specifically recognized that extending the 120-day period to keep a claim from being barred by the statute of limitations is a proper exercise of discretion.  As the Third Circuit explained in Boley:

In drafting the amendment of Rule 4(m), the Advisory Committee plainly had in mind, as its note states, “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 . . . .  

Id. at 758 (quoting Fed. R. Civ. P. 4(m) adv. comm. note (1993)) (emphasis added).  Significantly, “District Courts have consistently interpreted Rule 4(m) . . . [by] treating the running of the statute of limitation as a factor favoring the Plaintiff and […]

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