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Second Circuit Analyzes Civil Process Extension Rule Application

By David M. Reutter

The Second Circuit Court of Appeals has held that a district court may exercise its discretion to grant extensions under Fed. R. Civ. P. 4 (m), absent a showing of good cause under certain circumstances. In the case before the Second Circuit, the court held there was no abuse of discretion because the plaintiff not only failed to show good cause, but advanced no colorable excuse whatsoever for his neglect.

The action originated as a civil rights complaint, alleging guard “John” Moran assaulted prisoner Andy Zapata in a holding pen at the Anna M. Cross center on Rikers Island in New York on June 27, 2002. The complaint, which was filed on May 18, 2005, further alleged claims against the City of New York.

The City moved to dismiss the complaint for failure to state a cause of action or because the claims were timed barred. It also moved to dismiss the claim against guard Moran for failure to timely affect service. The district court granted the motion in its entirety.

On appeal, Zapata only challenged the dismissal as it concerned Moran, arguing the service period should be extended either for good cause or in light of the harsh application of the statute of limitations. Zapata contended the district court failed to consider the impact of the 1993 amendments on former rule 4 (j). That contention required the Second Circuit to examine the two-clause structure of the post 1993 rule 4 (m).

Under that rule, if service is not effective within 120 days; (1) “The court…shall dismiss the action without prejudice…or direct that service be effected within a specific time;” but that (2) “if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.” Thus, once the court determines good cause exists, the rule commands that an “appropriate” extension “shall” be granted upon such a showing.

The first clause makes no mention of good cause, which “commits extensions in the absence of good cause, like determinations on the presence of good cause, to the sound discretion of the district court,” said the Second Circuit. The court held that district courts are not required to mechanically recite the implications of the 1993 amendment, as long as the record indicates the court weighed the impact that a dismissal or extension would have on the parties when the statute of limitations is at issue.

The Second Circuit Court declined to adopt Zapata’s argument that the court adopt a per se rule that courts may not deny an extension based on the prejudice to the defendant arising from the statute of limitations, as one other court has held.

It was found that Zapata’s pleadings show “a description of poor communication between client and counsel is a confession of neglect, not an excuse for it.” Thus, the district courts order was affirmed because no abuse of discretion was shown. See: Zapata v. City of New York, 502 F.3d 192 (2nd Cir. 2007).

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Related legal case

Zapata v. City of New York