United States District Court, M.D. Florida, Tampa Division
ORDER
AMANDA
ARNOLD SANSONE, United States Magistrate Judge.
Before
the Court is Plaintiff's Second Motion for
Extension of Time. (Doc. 8). Plaintiff asks the
Court to extend the deadline in which Plaintiff must serve
Defendant by an additional sixty days. (Id.). For
the reasons set out below, Plaintiff's Motion is
DENIED.
I.
PROCEDURAL HISTORY
On June
30, 2017, Plaintiff United States of America filed a
complaint against Defendant Mark W. Ciaravella seeking to
collect outstanding student loan debt. (Doc. 1, p. 2).
Pursuant to Federal Rule of Civil Procedure 4(m), Plaintiff
had ninety days to serve Defendant; that is, until September
28, 2017. On July 3, 2017, the Clerk entered an Order
Regulating the Processing of Civil Recovery Actions, wherein
the Clerk advised Plaintiff that if service wasn't
perfected by the September 28th deadline, then
Plaintiff was required to either move for voluntary dismissal
of the case or show cause in writing why the action should
not be dismissed for lack of prosecution by October 3, 2017.
(Doc. 3).
Plaintiff
failed to perfect service by September 28, 2017. Plaintiff
also failed, prior to the Clerk's October 3rd
deadline, to either move for voluntary dismissal or show
cause in writing why the action should not be dismissed for
lack of prosecution. On October 25, 2017, despite its
noncompliance with the Federal Rules of Civil Procedures and
the Clerk's order, Plaintiff filed a Motion for Extension
of Time (“First Motion”) in which to serve
Defendant. (Doc. 6). Plaintiff unapologetically filed its
First Motion thirty days after its original service deadline
and over twenty days after the deadline in the July
3rd Clerk's order. While Plaintiff stated in
its belated First Motion that it attempted to serve Defendant
at his home address on eight separate occasions, two of
Plaintiff's attempts occurred weeks after the
September 28th service deadline. (Doc. 6, p. 1).
Not only was Plaintiff unapologetic about its unexcused delay
in filing its First Motion, but Plaintiff did not provide the
Court with any process server paperwork or affidavits to
support its allegations related to the six timely attempts at
service and did not even pay lip service to the good cause
standard for permitting an extension of the expired service
deadline. (Doc. 7, p. 2). Despite these significant
shortcomings, the Court reluctantly permitted Plaintiff an
additional thirty days (until November 27, 2017) to perfect
service on Defendant. (Id.).
Five
days prior to the extended deadline, on November 22, 2017,
Plaintiff filed its Second Motion for Extension of Time
(“Second Motion”) to serve Defendant.
II.
ANALYSIS
Rule
4(m) provides that if a plaintiff fails to serve the
defendant within ninety days after the complaint is filed or
after a specified time given by the court, the plaintiff must
show good cause as to why an extension of time in which to
serve the defendant should be given. Good cause exists when
some outside factor, such as reliance on faulty advice,
prevents service of process. Prisco v. Frank, 929
F.2d 603, 604 (11th Cir. 1991) (discussing good cause in the
context of Rule 4(j), which is the previous version of Rule
4(m)) (citation omitted). However, inadvertence or negligence
do not constitute good cause. Id. In the absence of
good cause, the Court has the discretion to extend the time
for service of process. Horenkamp v. Van Winkle and Co.,
Inc., 402 F.3d 1129, 1132 (11th Cir. 2005) (citation
omitted).
Here,
Plaintiff's Second Motion, much like its First Motion,
comes with a number of irregularities. In the month since the
Court's Order on the First Motion, Plaintiff has not
attempted to perfect service on Defendant at his home and has
instead attempted to perfect service on Defendant at his
place of employment twice: once on October 31st (Halloween)
and once on November 21st (Thanksgiving week). (Doc. 8, p.
1). Under the circumstances, a mere two service attempts
during a month-long period for service after failed prior
attempts does not strike the Court as either persistent or
diligent. Moreover, under the circumstances, Plaintiff's
decision to wait three weeks between the two lone service
attempts and then to have the last pre-deadline service
attempt at Defendant's workplace on the Tuesday of
Thanksgiving week is also, simply put, inexcusable. Last,
despite the Court pointing out Plaintiff's failure in its
prior Order (Doc. 7, p. 2), Plaintiff once again has not
provided the Court with any process server paperwork or
affidavits verifying its service attempts. Ultimately,
Plaintiff has nothing to support any claim that Plaintiff
could make that there is good cause for the Court to once
again extend Plaintiff's service deadline.
Tellingly,
nowhere in Plaintiff's Second Motion does Plaintiff
muster up the courage to even argue to the Court that there
is good cause for Plaintiff to be granted another extension.
There is no good cause. Plaintiff's actions in filing its
First Motion well after the applicable deadline, not
providing the Court with sufficient documentation to evaluate
Plaintiff's prior unsuccessful service attempts, and poor
judgment in choosing when and how often to attempt service
illustrate a lack of diligence. Thus, the Court finds that
this lack of diligence, like inadvertence and negligence,
undercuts any colorable claim that there is good cause for an
additional extension.
III.
CONCLUSION
For the
aforementioned reasons, it is ORDERED that
Plaintiffs Second Motion for ...