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Second Circuit Upholds FRCP 4(m) Dismissal for Untimely Service

The Second Circuit Court of Appeals affirmed the dismissal of a New York woman's false arrest suit, for failure to timely serve Defendants.

On July 14, 2010, Leslie Meilleur brought federal suit against several New York Police Department officers, alleging false arrest and malicious prosecution.

Service of a complaint must be completed within 120 days of filing, under Federal Rule of Civil Procedure (FRCP) 4(m). As such, Meilleur's complaint had to be served by November 11, 2010.

When Meilleur failed to complete service by November 11, 2010, the district court issued a November 16, 2010 order, directing her to complete service by December 30, 2010, and warning her that the case would be dismissed if she failed to do so. The court repeated this warning on November 29, 2010.

On December 2, 2010, Meilleur asked the U.S. Marshals to serve the Defendants, but service was not completed before the December 30, 2010 deadline. Meilleur "did not apprise the court of the arrangements she had made with the Marshals, nor – as the December 30 deadline drew near – did she file a proof of service or lodge a new request for an extension of time in accordance with the court's November 16, 2010 order."

On January 10, 2011, the court dismissed Meilleur's action pursuant to FRCP 4(m). Even then, Meilleur did not inform the court that she timely requested Marshal service or that she was still awaiting completion thereof.

The Marshals eventually effected service on February 7, 2011. Meilleur then filed a May 10, 2011 motion to reopen her case, supported by proof that service was completed on February 7, 2011. The court denied the motion on May 26, 2011.

The Second Circuit affirmed. "Were the Marshal-attributable delay the only factor motivating the district court's rejection of Meilleur's motion to reopen," the court noted that it "might well, in keeping with Meilleur's entitlement to rely on the Marshals, find reversible error in the court's decision." Yet, Meilleur did nothing to communicate her efforts to the court, or explain "the multi-month lag between service and her motion to reopen. Therefore, the district court did not abuse its discretion in finding that there was no 'mistake, inadvertence, surprise, or excusable neglect' that would justify Rule 60(b)(1) relief." See: Meilleur v. Strong, 682 F.3d 56 (2d Cir. 2012).

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Related legal case

Meilleur v. Strong