E.D. Va. Notes Intracircuit Split Re Need to Show Good Cause to Warrant Extension of FRCP 4(m)'s 120-day Period

Per U.S. v. Sea Bay Development Corp., Slip Copy, 2007 WL 1378544 (E.D.Va. May 08, 2007):

The standards for proper service as set forth in Federal Rule of Civil Procedure 4 are incorporated into Rule 12(b)(5). 5B Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 1353 (3d ed.2004); see Lilly v. Winter, No. 1:05cv879, 2006 WL 543977, at *1 (E.D.Va. March 3, 2006) (incorporating the Rule 4(m) time limit into a Rule 12(b)(5) analysis). Rule 4(m) states that, “if the plaintiff shows good cause for the failure [to effect service within 120 days after the filing of the complaint], the court shall extend the time for service for an appropriate period.” Fed.R.Civ.P. 4(m). Good cause requires “reasonable and diligent efforts to effect service” within the 120-day limit. Quann v. Whitegate-Edgewater, 112 F.R.D. 649, 661 (D.Md.1986); see also Hammad v. Tate Access Floors, Inc., 31 F.Supp.2d 524, 528 (D.Md.1999). A defendant's evasion of service can constitute good cause. T & S Rentals v. United States, 164 F.R.D. 422, 425 (N.D.W.Va.1996). Attorney inadvertence, however, weighs against a finding of good cause. Id.

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The Court notes that the United States Court of Appeals for the Fourth Circuit (the “Fourth Circuit”) has held that a finding of good cause is required before the 120-day limit can be extended, and a district court lacks discretion to extend the period otherwise. Mendez v. Elliot, 45 F.3d 75, 78-79 (4th Cir.1995). However, subsequent to Mendez, the United States Supreme Court stated, albeit in dicta, that “courts have been accorded discretion to enlarge the 120-day period ‘even if there is no good cause shown.’ “ Henderson v. United States, 517 U.S. 654, 662-63 (1996) (quoting Fed.R.Civ.P. 4 advisory committee's note). After Henderson, courts in the Fourth Circuit have been divided over the continuing validity of Mendez. Compare Scruggs v. Spartanburg Reg ‘l Med. Ctr., No. 98-2364, 1999 WL 957698, at *2 (4th Cir. Oct. 19, 1999) (stating that the district court “in its discretion, could have extended the time for proper service of process ....”), and Hammad, 31 F.Supp.2d at 527-28 (“[T]his court concludes that Mendez is no longer good law and that, if given the opportunity, the Fourth Circuit perforce would adopt the interpretation of Rule 4(m) held by the Supreme Court ....”), with In re Hall, 222 B.R. 275, 278 (Bankr.E.D.Va.1998) ( “Although courts have criticized Mendez, it remains binding precedent in this circuit”).