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Insufficient Service of Process During the Time for Service

Posted by James Juo | Mar 29, 2023 | 0 Comments

Rule 4(m) of the Federal Rules of Civil Procedure states: “If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant.” But the court must extend the time for service if “good cause” can be shown for the failure of timely service. The court also may exercise its discretion to extend the time for service otherwise.

Unless the court extends the time for service, the failure to timely serve under Rule 4(m) is grounds for dismissal under Rule 12(b)(5) for insufficient service of process. See Diaz v. State of Cal., No. C-94-20113-JW, 1994 WL 618602, at *2 (N.D. Cal. Nov. 2, 1994) (“Plaintiffs' counsel was less than diligent in its service attempts, as it took over five months to serve Mr. Mayfield”); Jen v. City & Cnty. of San Francisco, No. 15-CV-03834-HSG, 2018 WL 1524049, at *2 (N.D. Cal. Mar. 28, 2018) (granting dismissal where the length of the delay of service had been two-and-a-half years); Mayfield v. Chevron U.S.A. Inc., No. 6:18-CV-510-JDK-JDL, 2019 WL 125877, at *4 (E.D. Tex. Jan. 7, 2019) (“Plaintiff offers no reasonable explanation for his ten-month delay in serving process, negating due diligence as a matter of law.”).

Even assuming that the unserved party previously was otherwise given actual notice of the unserved pleading, it still would be insufficient service of process under Rule 4. Jen, 2018 WL 1524049, at *2.

As an affirmative defense, if insufficient service of process is not asserted in a Rule 12(b) motion or in the answer to the pleading, then it may be deemed waived.

Amended Pleadings

Amendments to a pleading ordinarily will not extend the time for serving parties who were named earlier. Bolden v. City of Topeka, 441 F.3d 1129, 1148 (10th Cir. 2006) (“period provided by Rule 4(m) is not restarted by the filing of an amended complaint except as to those defendants newly added in the amended complaint”); Blomquist v. Horned Dorset Primavera, Inc., No. 13-1835 (MEL), 2014 WL 4537056, at *3 n.4 (D.P.R. Sept. 11, 2014) (“period for serving process pursuant to Rule of Civil Procedure 4(m) began to run when the original third-party complaint was filed, . . . and was not extended due to the amendment”).

Thomas P. Howard, LLC litigates nationwide including in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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