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Riley v. Office of Alcohol & Tobacco Control

United States District Court, E.D. Louisiana

November 13, 2018

TRACY RILEY
v.
OFFICE OF ALCOHOL & TOBACCO CONTROL, ET AL.

          ORDER & REASONS

          LANCE M. AFRICK, UNITED STATES DISTRICT JUDGE.

         Before the Court is pro se plaintiff Tracy Riley's (“Riley”) motion[1] for an extension of time, pursuant to Federal Rule of Procedure 6(b) “and General Order and Guideline 4, ” to effect service on the defendants in this case.[2] In addition to resolving Riley's present motion, the Court also uses this occasion to provide written reasons for its November 7, 2018 order of dismissal without prejudice.[3]

         I.

         On July 25, 2018, Riley filed her original complaint against over 100 defendants.[4] On September 12, 2018, she filed an amended complaint, naming several additional defendants.[5]

         The timeliness requirement for service of process is governed by Federal Rule of Civil Procedure 4(m), which provides:

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 or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

         Riley submitted the present request for an extension of time on October 23, 2018, exactly 90 days after her original complaint was filed. The motion does not specify which defendants Riley needs additional time to serve.

         To the best of the Court's knowledge, the Fifth Circuit has not addressed the question of whether the filing of an amended complaint restarts the 90-day period during which the plaintiff must effect service. However, other courts have concluded that, when the plaintiff files an amended complaint, the service period does not restart as to those defendants named in the original complaint. Bolden v. City of Topeka, 441 F.3d 1129, 1148 (10th Cir. 2006); Carmona v. Ross, 376 F.3d 829, 830 (8th Cir. 2004); see also UWM Student Ass'n v. Lovell, 888 F.3d 854, 859 (7th Cir. 2018); Warren v. Bituminous Cas. Corp., No. 13-2354, 2014 WL 348544, at *2 (E.D. La. Jan. 31, 2014) (Milazzo, J.).

         “This construction of the rule prevents the plaintiff from repeatedly filing amended complaints to ‘extend the time for service indefinitely.'” Bolden, 441 F.3d at 1148 (quoting Del Raine v. Carlson, 826 F.2d 698, 705 (7th Cir. 1987)). In an October 31, 2018 order, the Court explained that it finds such reasoning persuasive and adopted the approach of the foregoing courts.[6] Consequently, Riley was required to serve the defendants named in the original complaint by October 23, 2018 or, at the latest, October 24, 2018.[7]

         “[W]hen a district court entertains a motion to extend time for service, it must first determine whether good cause exists.” Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996). If the Court finds good cause, it must extend the time for service. Id.; see also Fed. R. Civ. P. 4(m). If the Court does not find good cause, it may, in its discretion, either extend time for service or dismiss the case. Id. The plaintiff bears the burden of establishing good cause. Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1305 (5th Cir. 1985); see also Newby v. Enron Corp., 284 Fed.Appx. 146, 149 (5th Cir. 2008).

         Proof of good cause for failure to effect service “requires ‘at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.'” Thrasher v. City of Amarillo, 709 F.3d 509, 511 (5th Cir. 2013) (quoting Winters, 776 F.2d at 1306). “Additionally, some ‘showing of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified is normally required.'” Id.

         II.

         On October 29, 2018, because a number of defendants had not been timely served and in light of Riley's request for an extension, the Court ordered Riley to appear before the Court on November 7, 2018 and show good cause as to why those defendants named in the original complaint that had not yet been served should not be dismissed. Riley failed to appear at the Court hearing. Consequently, the Court determined that no good cause existed, and it dismissed those defendants listed in the October 29, 2018 order from the case for the same reasons, stated herein, that the Court now denies Riley's motion for an extension of time.[8]

         In support of her request, Riley cites the fact that she is a pro se litigant who lacks knowledge of the “complexity of the legal system” and the fact that there are 135 defendants in this case. She also claims that 80% of the defendants “have received ...


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