name Healy and used the same social security number she had always used.
Healy urges dismissal for failure to effect timely service of process. See Fed. R. Civ. P. 4(j). A plaintiff must make service of the summons and complaint upon a defendant within 120 days after the filing of a complaint, unless it can show good cause for the delay. Id. Where a plaintiff fails to comply with this rule, the action shall be dismissed as to that defendant without prejudice. Id.
Case law interpreting "good cause" in the context of Rule 4(j) is sparse, but some basic principles have been articulated. The plaintiff bears the burden of showing good cause. Coleman v. Greyhound Lines, Inc., 100 F.R.D. 476, 478 (N.D. Ill. 1984). A defendant's intentional evasion of service constitutes good cause. Ruiz Varela v. Sanchez Velez, 814 F.2d 821, 823 (1st Cir. 1987). However, inadvertent delay in service does not constitute good cause; plaintiff must have made a "reasonable effort" to effect timely service. Gordon v. Hunt, 116 F.R.D. 313 (S.D.N.Y. 1987). Determination of whether good cause is demonstrated in a given case is a matter of discretion. U.S. For Use and Benefit of DeLoss v. Kenner General, 764 F.2d 707, 711 (9th Cir. 1985).
Courts are divided as to whether prejudice to the defendant resulting from the delay is a relevant factor in determining good cause. Gordon, 116 F.R.D. at 321. This court would consider any prejudice against the defendant as supportive of dismissal under Rule 4(j). However, the absence of prejudice to a defendant does not enhance a plaintiff's case for demonstrating good cause. Because no prejudice to Healy has been demonstrated here, this factor does not affect the court's finding as to good cause.
Another possible factor is prejudice to a plaintiff resulting from dismissal. Again, the court does not consider the absence of such prejudice to work in favor of a finding of no good cause. However, the existence of such prejudice could work in favor of a plaintiff. Here, dismissal without prejudice would time bar this action, because the statute of limitations has already run. Nevertheless, due to the facts of this case, the court is unwilling to consider this factor as weighing in plaintiff's favor. The only reason that dismissal pursuant to Rule 4(j) would prejudice plaintiff is plaintiff's extreme delay in filing this action. And only plaintiff's lax pursuit of it own assessment accounts for the last minute filing of this action. Thus, plaintiff brought the prejudicial impact upon itself. Moreover, Congress recognized the possibility that dismissal after the expiration of a statute of limitations could bar a plaintiff from bringing an action. DeLoss, 764 F.2d at 711 n. 5. Consequently, prejudice to the parties is not a factor in the court's determination of good cause.
The court is left, therefore, with the question of whether plaintiff's efforts at service were "reasonable." Little case law exists to aid the court in drawing a line between "inadvertent" and "reasonable" non-service. Gordon, 116 F.R.D. at 320. This court finds that, because Rule 4(j) states a 120 day limit to service, a plaintiff only makes reasonable efforts if it proceeds in a manner reasonably calculated to effect service within 120 days. Plaintiffs should assume that they have a 120 day "deadline."
The court finds that plaintiff's efforts were not reasonably calculated to effect service within 120 days. This conclusion is supported by the manner by which plaintiff eventually succeeded in locating Healy. In late March of 1988, counsel for the United States requested that the IRS seek to discover Healy's current address. The IRS located Healy's whereabouts through its routine archive retrieval procedure. Once this was accomplished, the IRS telephoned Healy, and asked her to come to the local IRS office to effectuate service. Healy complied, and was served at the IRS office. From this, two things are apparent. First, the IRS itself had information as to Healy's whereabouts all along, yet did not even begin to search its own records for that information until approximately two-thirds of the 120 day period had expired. Second, once the IRS records were consulted, service of process was easily accomplished. (Holmes to Watson: "Elementary.")
The efforts actually taken by plaintiff were as follows. Plaintiff checked the administrative file of N.I.B., which had been provided to the IRS in another lawsuit, and did not find Healy's current address. Plaintiff also made telephone calls to directory assistance. Through telephone inquiries, plaintiff located a Marci and Paul Manning, and served that Marci Manning by mail on January 8, 1988. Plaintiff made no further effort to ascertain that it had located the proper defendant; toward the end of January, the Marci Manning who had been served called and explained that she was not the person described in the complaint. After calls to directory assistance failed to locate Healy, plaintiff inquired among several co-workers of Healy at N.I.B., none of whom were able to provide helpful information.
The court finds these efforts insufficient to establish good cause. Plaintiff relied on information nine to ten years old, information predictably of little value, and phone calls to directory assistance, predictably ineffective in many cases. Plaintiff relied on these efforts alone for almost three months after filing its complaint despite the fact that the IRS's own records contained the necessary information all along. A woman changing her name as a result of marriage is a common event in our society, and an agency with the resources of the IRS should take that fact into account when attempting to locate defendants.
Finally, the court considers that plaintiff failed to move that the court enlarge time for service. See Fed. R. Civ. P. 6(b). A plaintiff unable to ensure timely service of process should move for an enlargement of time. Lovelace v. ACME Markets, 820 F.2d 81, 84 (3d Cir. 1987). The court weighs plaintiff's failure to so move within the 120 day period as another factor indicating that its efforts were not reasonable.
In sum, the motion to dismiss pursuant to Rule 4(j) of the Federal Rules of Civil Procedure is granted. Defendant Marci Healy (Marci Manning) is dismissed. The court need not reach the remaining issues in defendant Healy's motion.
IT IS SO ORDERED.
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