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Geiger v. Allen

decided: June 29, 1988.

ANDREA GEIGER, PLAINTIFF-APPELLANT,
v.
DONALD ALLEN, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 86 C 4419--Charles P. Kocoras, Judge.

Wood, Jr. and Cudahy, Circuit Judges, and Fairchild, Senior Circuit Judge.

Author: Wood

WOOD, JR., Circuit Judge.

Plaintiff Andrea Geiger appeals from a district court order dismissing her diversity action against defendant Donald Allen. The district court dismissed Geiger's action for failure to serve Allen within 120 days of filing her complaint, as mandated by Federal Rule of Civil Procedure 4(j). We affirm.

I. FACTUAL BACKGROUND

For purposes of this appeal, the details of Geiger's underlying cause of action are irrelevant; we need only review the procedural history of this case. Geiger originally filed suit in the Northern District of Illinois on June 19, 1986, naming Allen and others as defendants. On September 25, 1986, the district court dismissed Geiger's action, with leave to file a motion to reconsider within thirty days. Geiger timely filed a motion to reconsider and the court reinstated her action on November 25, 1986.*fn1

The only attempt Geiger's counsel made to locate Allen between filing the complaint on June 19 and the September 25 dismissal was to check with the Secretary of State's office to determine whether Allen, who is blind, had a restricted driver's license. After the court reinstated the case on November 25, Geiger's counsel asked McClurg Court Associates (McClurg), Allen's former employer and a co-defendant, for Allen's address. Alter four such requests, McClurg provided Geiger's counsel with the address during the week of January 5, 1987. On January 9, 1987, when the action had been pending for 143 days, Geiger's counsel finally mailed copies of the summons and complaint to Allen.

Allen subsequently moved that the court dismiss Geiger's suit for noncompliance with Federal Rule of Civil Procedure 4(j). On June 9, 1987, the district court issued a memorandum opinion granting Allen's motion to dismiss without prejudice, from which Geiger appeals. We have jurisdiction over this appeal pursuant to Fed. R. Civ. P. 54(b) and 28 U.S.C. ยง 1291 (1982).*fn2

II. DISCUSSION

Federal Rule of Civil Procedure 4(j) provides:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.

As the Ninth Circuit explained, "[t]he rule is intended to force parties and their attorneys to be diligent in prosecuting their causes of action." Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985). Thus, Congress drafted the rule so that dismissal is mandatory if a defendant is not served within 120 days, unless the plaintiff can show good cause for the delay. Braxton v. United States, 817 F.2d 238, 240 (3d Cir. 1987); Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1305 (5th Cir. 1985); see 1982 U.S. Code Cong. & Admin. News 4434, 4441.

First, Geiger argues that Rule 4(j) does not apply to this case because Allen was actually served with process. Geiger contends that Rule 4(j) applies only to situations in which the 120-day period has run and the defendant has not been served. Because Geiger's counsel mailed a copy of the summons and complaint to Allen on January 9, 1987, Geiger argues that Allen was in fact served and therefore the court should have denied his motion to dismiss. This argument is meritless.

Rule 4(j) applies equally to defendants who were never served and defendants who were served after the 120-day period had lapsed. If we were to accept Geiger's reasoning, the ability of a defendant to move for dismissal of an action for failure to comply with Rule 4(j) would be virtually meaningless, since many defendants will not be aware that an action is pending until they are served. Instead, we agree with the reasoning of the Fifth Circuit that "the only exception to Rule 4(j) dismissal is good cause for failure to serve within the 120 days. Later service or later knowledge by the defendant is irrelevant to that." Winters, 776 F.2d at 1306. See Ordower v. ...


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