Giacomo-Tano v. Levine ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DARCEL SAN GIACOMO-TANO; EUGENE
D. TANO,
Plaintiffs-Appellants,
v. No. 98-2060
CHARLES D. LEVINE; PATRICK A.
HAYE; WAYNE L. BANKS,
Defendants.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CA-98-1691-AMD)
Submitted: January 12, 1999
Decided: October 27, 1999
Before WIDENER and TRAXLER, Circuit Judges, and HALL,*
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
G. Macy Nelson, Towson, Maryland, for Appellants.
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*Senior Judge Hall participated in the consideration of this case but
died prior to the time the decision was filed. The decision is filed by a
quorum of the panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Darcel San Giacomo-Tano and Eugene D. Tano (Appellants)
appeal the district court's order dismissing their civil cause of action
arising from an automobile accident in Maryland. The district court
dismissed the action without prejudice as a result of the Appellants'
failure to effect service of process within 120 days as required by Fed.
R. Civ. P. 4(m). Because there was no abuse of discretion on the part
of the district court in dismissing the action, we affirm.1
Appellants filed their complaint in the district court for the District
of New Jersey on June 11, 1997. On January 28, 1998, the New Jer-
sey district court issued a show cause order regarding the Appellants'
failure to effect service of process on the named defendants. In per-
suading the New Jersey district court to withdraw its call for dis-
missal, counsel filed an affidavit stating that he had unsuccessfully
attempted service by mail and was endeavoring to locate current
addresses for the defendants. Counsel made this representation in
February 1998. In March, counsel sought permission to have service
of process made by a private process server in Baltimore, Maryland,
rather than seek the assistance of the United States Marshal in New
Jersey. That permission was granted. At the same time, counsel
sought to have this action transferred to the District of Maryland. The
district court in New Jersey granted the motion and the clerk for the
District of Maryland received and docketed the case on May 29,
1998.
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1 Although the Appellants' notice of appeal specifies the district court's
order declining to reconsider the order of dismissal, the Appellants do
not advance any argument on appeal that would suggest that the district
court abused its discretion in denying the motion for reconsideration. See
Collison v. International Chem. Workers Union, Local 217, 34 F.3d 233,
236 (4th Cir. 1994).
2
On June 3, 1998, 126 days after the first show cause order and
nearly a year after the filing of the complaint, the district court for the
District of Maryland issued its own show cause order regarding the
continuing failure of counsel to effect service of process. In response,
counsel filed an affidavit chronicling the failed attempt at service by
mail, the request for authorization to use a private process server, and
the transfer of the case to Maryland.2 Notably, counsel did not show
the court that the process server had been retained or suggest that any
progress had been made in discovering the whereabouts of the defen-
dants.
In addition to specifying the 120-day period for service of process,
Rule 4(m) states that "if the plaintiff shows good cause for the failure
[to serve in a timely way], the court shall extend the time for service
for an appropriate period." Although this language appears to require
the district court to grant requested extensions of time, the require-
ment applies only if the plaintiff can establish good cause, and the
determination whether good cause exists is one entrusted to the dis-
trict court's discretion. See Panaras v. Liquid Carbonic Indus. Corp.,
94 F.3d 338, 340-41 (7th Cir. 1996); see also Boley v. Kaymark, 123
F.3d 756, 758 (3d Cir. 1997), cert. denied, ___ U.S. ___, 66 U.S.L.W.
3399 (U.S., Feb. 23, 1998) (No. 97-875); Hendry v. Schneider, 116
F.3d 446, 449 (10th Cir. 1997). Even if a plaintiff does not establish
good cause, the district court may in its discretion grant an extension
of time for service. See Henderson v. United States, 517 U.S. 654,
663 (1996); Panaras, 94 F.3d at 341; Hendry, 116 F.3d at 449.
An abuse of the district court's discretion occurs when it either
fails or refuses to exercise its discretion, or relies on an erroneous
determination of the applicable law or facts. See James v. Jacobson,
6 F.3d 233, 239 (4th Cir. 1993). The Appellants suggest that the dis-
trict court erred by failing to sufficiently take into account that "valid
service could not have been achieved" while the case was pending in
the New Jersey district court. The Appellants contend that because the
New Jersey district court would not have had personal jurisdiction
over the defendants, there could have been no "valid service" effected
by the New Jersey court's summons.
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2 Counsel noted in a Supplemental Affidavit that the statute of limita-
tions had run.
3
Even assuming that this argument was presented to the district court,3
it is not evidence that the district court abused its discretion. Gener-
ally speaking, in determining whether to dismiss the complaint for a
violation of Rule 4(m), the primary focus is on the plaintiff's reasons
for not complying with the time limit in the first place. See MCI Tele-
communications Co. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d
Cir. 1995). In the initial affidavit in opposition to the Maryland dis-
trict court's show cause order, Appellants' reasons for not complying
with the 120-day limit were confined to counsel's inability to effect
service of process by mail on the first attempt, and the fact that the
case was transferred to the Maryland district court. The district court
concluded that these reasons did not constitute"good cause."
The Appellants have not shown how the district court abused its
discretion in reaching this conclusion. Although the Appellants' con-
cerns about the validity of service of process are cogent, and could,
under some circumstances, constitute good cause for their failure to
make service of process within 120 days from filing suit, it was not
an abuse of the district court's discretion to determine that under these
circumstances, that concern was not sufficient. This is especially true
in light of the relative inactivity of counsel in attempting to locate the
defendants so that they might be served and the fact that the delay
occasioned by the transfer was created by the Appellants. Because
there is no evidence of record that the district court relied on either
an erroneous factual or legal determination in exercising its discretion
to dismiss the action, there was no abuse of discretion on the part of
the district court.
Appellants next contend that the district court erred in not applying
what they claim was the law of the case with respect to good cause
for their failure to effect service of process. They argue that because
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3 In the motion for reconsideration of the district court's order dismiss-
ing the action, counsel stated that it "simply made no sense" to serve the
defendants with a New Jersey summons after the Appellants had sought
to transfer the case to Maryland. Although the argument presented to the
district court is debatably distinct from the contention Appellants raise on
appeal, we will assume for the purposes of this appeal that the issue is
properly preserved. Cf. United States v. One 1971 Mercedes Benz, 542
F.2d 912, 915 (4th Cir. 1976); see also Local Rule 34(b).
4
the district court for the District of New Jersey determined that good
cause existed, the district court for the District of Maryland should
have considered that decision the law of the case. The law of the case
doctrine generally, regulates judicial affairs prior to the entry of final
judgment. See 18 Charles Alan Wright et al., Federal Practice and
Procedure § 4478 (1981). While courts generally adhere to this prin-
ciple and decline to revisit previously decided issues, the law of the
case is only a matter of practice and, as such, does not limit the power
of the court to reopen matters already decided. See id.; see also CNF
Constructors, Inc. v. Donohoe Constr. Co., 57 F.3d 395, 397 n.1 (4th
Cir. 1995) (stating that the law of the case doctrine is "discretionary
and not mandatory"); Capital Investors Co. v. Executors of Morri-
son's Estate, 584 F.2d 652, 654 (4th Cir. 1978) ("The principle [of
law of the case] is not absolute nor inflexible."). Accordingly, we
conclude that the district court was well within its authority to revisit
the Rule 4(m) issue addressed previously by the New Jersey district
court.
In addition, the district court unquestionably has the power to
revisit an issue, like the continued failure to effect service of process,
where the underlying factual basis for a prior ruling has changed. In
light of the lapse of four additional months since the first show cause
order, counsel provided evidence of little progress in completing the
task of service of process. The district court was within its discretion
to revisit the propriety of a dismissal as sanction for the continued
failure of service of process.
As a result, we find no error in the district court's dismissal of the
Appellants' civil action for their failure to comply with the 120-day
period imposed by Fed. R. Civ. P. 4(m). The district court's order is
affirmed. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the Court
and argument would not aid the decisional process.
AFFIRMED
5