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Losier v. Shinseki

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


September 9, 2010

JEAN MICHEL LOSIER, M.D., PLAINTIFF,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, U.S. DEPARTMENT OF VETERAN AFFAIRS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Herndon, Chief Judge

MEMORANDUM and ORDER

Now before the Court is Defendants' motion to dismiss (Doc. 8). Specifically, Defendants move the Court to dismiss Losier's complaint for failure to comport with the requirements of Rule 4(i) and Rule 4(m) of the Federal Rules of Civil Procedure. Losier filed a response admitting that service was improper as he retained counsel only several days before the end of the service period and that counsel made a reasonable and diligent effort to effectuate service within the time period (Doc. 11).

Federal Rule of Civile Procedure 4(m) provides in part:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period....

FED.R.CIV.P. 4(m). Even if good cause for an extension does not exist, the Court has discretion to grant an extension. Henderson v. United States, 517 U.S. 654, 662 (1996); United States v. Ligas, 549 F.3d 497, 501 (7th Cir. 2008); Panarasv. Liquid Carbonic Industries Corp., 94 F.3d 338, 340-41 (7th Cir. 1996).

While service was not effected within the 120-day period, the Court finds sufficient reason to grant a discretionary extension of time. Defendants have not alleged any prejudice resulted from the delay in service and the Court finds that the short delay in service was not prejudicial to them. Further, dismissing the case now would waste judicial resources, as Losier could re-file and attempt service again. Consequently, the Court declines to dismiss the complaint for improper service.

Accordingly, the Court DENIES Defendants' motion to dismiss (Doc. 8). Further, the Court ALLOWS Losier up to and including November 8, 2010 to complete service that comports with Federal Rule of Civil Procedure 4.

IT IS SO ORDERED.

David R. Herndon Chief Judge United States District Court

20100909

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