IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
GREENBRIER HOTEL CORPORATION, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:19-cv-00118

ACE AMERICAN INSURANCE COMPANY (CHUBB), et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
I.

Background
The plaintiffs filed their complaint [ECF No. 1] initiating this civil action on

February 15, 2019. The plaintiffs have since taken no action to prosecute the case. To
date, the plaintiffs have failed to serve—or even attempt to serve—any defendant in
this matter with process. Accordingly, on May 21, 2019, this court entered an order
[ECF No. 8] directing the plaintiffs to demonstrate good cause for not serving the
defendants with process within 90 days of the filing of the complaint as required by
Federal Rule of Civil Procedure 4(m). The court notified the plaintiffs that a failure
to respond to the court’s order within 10 days or an insufficient showing of good cause
would result in dismissal without prejudice of this case against the defendants.
On May 29, 2019, the plaintiffs filed a response [ECF No. 9] to the court’s order,
stating as follows: “On or about September 8, 2017, certain of the Plaintiffs and

 Defendants herein” entered into a tolling agreement “in relation to earlier litigation
that Plaintiffs had filed to obtain copies of insurance policies that Defendants had
refused to provide.” Pls.’ Resp. [ECF No. 9] 1. “Pursuant to the terms of that Tolling
Agreement, the parties agreed to toll” any statute of limitations, arbitration clause,
suit limitation clause, or similar provision from June 2017 through the termination
of the tolling agreement. Id. The claims covered by the tolling agreement “arguably
include those asserted by Plaintiffs in the instant matter.” Id. The plaintiffs allege
that they were unaware of the existence of the tolling agreement when they filed the
instant complaint. Id.
The plaintiffs state further that “Plaintiffs and Defendants”1 have agreed to
“extend the termination date” of the tolling agreement “to allow the parties to attempt
to resolve the matters at issue in the Complaint.” Id. at 2. “The parties have agreed
to participate in a meeting on June 18, 2019” to discuss whether the matter can be
resolved and the complaint dismissed. Id. If the meeting is unsuccessful, the plaintiffs
aver that they will proceed with service of process on the defendants on July 1, 2019.

Id.
The plaintiffs attached a letter agreement [ECF No. 9-1] to their response that
was “executed by counsel for Plaintiffs and counsel for Defendants” in this matter. Id.
The letter states that the “time for Plaintiffs to effect service of the Complaint shall
be tolled from May 31, 2019 through June 30, 2019.” Id., Ex. A [ECF No. 9-1] 1. The

It is not clear to the court which parties agreed to the extension. More than fifty defendants are
named in this action.
1

2

 agreement also states that “none of the Defendants in the Litigation will take any
formal steps in the Litigation . . . until July 1, 2019.” Id. The plaintiffs therefore
request that this matter remain on the court’s active docket despite their failure to
serve process as required by Rule 4(m).
Notably absent from the plaintiffs’ response, however, is any mention of the
phrase “good cause” or a citation to any other legal standard. The plaintiffs fall far
short of demonstrating that an extension of time to effect service of process is
warranted in this matter. For the reasons set forth below, the court DISMISSES
without prejudice the plaintiffs’ complaint. Because the dismissal is without
prejudice, the plaintiffs may refile the action.
II.

Discussion
Rule 4(m) of the Federal Rules of Civil Procedure provides:
If a defendant is not served within 90 days after the
complaint is filed, the court—on motion or on its own after
notice to the plaintiff—must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows
good cause for the failure, the court must extend the time
for service for an appropriate period.

Fed. R. Civ. P. 4(m) (emphasis added).
The plaintiffs filed their complaint with the court on February 15, 2019.
Pursuant to Rule 4(m), the plaintiffs were required to serve the defendants by May
16, 2019. The plaintiffs do not dispute that they have failed to effectuate service

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 within 90 days of the filing of the complaint. In fact, the plaintiffs do not allege that
they have even attempted to serve any defendant.
Nonetheless, the 90-day rule is not without exception. Critically, when a
plaintiff shows good cause for the failure to serve within 90 days, the court “ must
extend the time for service.” Fed. R. Civ. P. (4)(m) (emphasis added). Courts examine
a number of factors to determine if good cause exists to excuse a plaintiff’s failure to
serve timely—none of which are addressed in the plaintiffs’ response. Those factors
include whether: 1) the delay in service was outside the
plaintiff’s control, 2) the defendant was evasive, 3) the
plaintiff acted diligently or made reasonable efforts, 4) the
plaintiff is pro se or in forma paurperis, 5) the defendant
will be prejudiced, or 6) the plaintiff asked for an extension
of time under Rule 6(b)(1)(A).

Scott v. Md. State Dep’t of Labor, 673 F. App’x 299, 306 (4th Cir. 2016); see Beasley
v. Bojangles’ Rests., Inc., No. 1:17CV255, 2018 WL 4518693, at *1 (M.D.N.C. Sept.
20, 2018); Martinez v. United States, No. DKC 13-0237, 2013 WL 6858860, at *2 (D.
Md. Dec. 26, 2013) (“The common thread in all of these examples is that the
interference of some outside factor prevented the otherwise-diligent plaintiff from
complying with the rule.”). What constitutes good cause “necessarily is determined
on a case-by-case basis within the discretion of the district court.” Scott, 673 F. App’x
at 306. “The burden to prove good cause is on the plaintiff.” Beasley, 2018 WL
4518693, at *1.
It is clear that the plaintiffs have not shown—or even attempted to show—
good cause for their failure to timely serve the defendants. As to the first factor, there
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 is no indication that the delay in service was outside of the plaintiffs’ control. To the
contrary, the plaintiffs have purposely delayed serving the defendants in this matter
in order to conduct settlement negotiations. Second, there is no evidence that the
defendants have been evasive. Third, the plaintiffs have not acted diligently or made
reasonable efforts to effectuate service; instead, their efforts have been directed at

avoiding service of process. The plaintiffs admittedly have made no attempt to serve
any defendant since the filing of the complaint. Fourth, the plaintiffs are represented
by counsel. In addition, the plaintiffs cannot rely on Rule 6(b)(1)(A) given that they
failed to request an extension before the expiration of the 90-day period.
The court now turns to the fifth factor: prejudice to the defendants. The parties’
letter agreement appears to show that the defendants in this matter may have at
least informal notice of the action. The letter agreement states that it “memorialize[s]
the agreement among all parties to [this] referenced action.” Pls.’ Resp., Ex. A
(emphasis added). But the letter is signed by one attorney for the plaintiffs and
apparently only two attorneys for the defendants. The court can assume, based on
the parties’ statements, that each of the more than fifty defendants in this matter—
including an assortment of insurance companies and private individuals—is
represented by the two attorneys who signed the agreement. This lack of clarity,
however, makes an assessment of prejudice to each defendant difficult and therefore
does not support a finding of good cause. Even if this factor weighed in favor of such
a finding, every other factor weighs heavily against the plaintiffs. The plaintiffs also
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 have not even made an assertion that good cause exists. How can I then find good
cause for their failure to timely serve the defendants? I find the plaintiffs are not
entitled to an extension of time for service for good cause under Rule 4(m).
This finding does not necessarily end the court’s inquiry. “[A] disagreement
exists in this Circuit as to whether a showing of good cause is absolutely necessary,
or whether an extension of time to effectuate service may nonetheless be granted
within the Court’s discretion even if good cause is not shown.” Miller v. Tucker, 2:13cv-21753, 2014 WL 989204, at *2 (S.D. W. Va. Mar. 13, 2014); see also In re: Ethicon,

Inc., No. 2:14-cv-22754, 2016 WL 2588036, at *2 (S.D. W. Va. Apr. 29, 2016) (Goodwin,
J.) (“Whether this court is permitted to extend the time for service when a plaintiff
cannot show good cause is not entirely clear.”); Uzoukwu v. Prince George’s Cmty.

Coll. Bd. of Trs., No. DKC 12-3228, 2013 WL 3072373, at *2 (D. Md. June 17, 2013)
(explaining that “[s]ome decisions, relying on the Fourth Circuit's ruling in Mendez

v. Elliot, 45 F.3d 75 (4th Cir. 1995), hold that a showing of good cause is mandatory .
. . [while] [o]ther cases, relying on the Advisory Committee Notes to Rule 4(m) and
dicta from Henderson v. United States, 517 U.S. 654, 662 (1996), hold that Mendez
is no longer good law”). The text of Rule 4(m) provides that a district court may “order
that service be made within a specified time,” regardless of whether a plaintiff shows
good cause. Fed. R. Civ. P. 4(m). But in Mendez, “the Fourth Circuit held that a case

must be dismissed when the plaintiff fails to effect service within the designated time

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 period absent a showing of good cause.” Martin v. S.C. Dep’t of Corrs., No. 0:19-59MGL-PJG, 2019 WL 2124957, at *3 (D.S.C. Apr. 23, 2019).
Some district courts in this circuit have continued to apply the oft-criticized
holding in Mendez despite an amendment to the Rule. See, e.g., Addison v. Amica

Mut. Ins. Co., No. 5:18-3158-JMC-PJG, 2019 WL 2191795, at *3 (D.S.C. May 21,
2019) (applying Mendez and holding that, as a consequence, “the court cannot avail
itself the option that appears to be offered by Rule 4(m)—that is, directing Plaintiff
to effect service by a certain time—unless good cause is shown for the failure to timely
serve Defendant”); Martin, 2019 WL 2124957, at *5 (same). Yet other courts within
this circuit have held that Mendez is no longer controlling authority and have
extended the time for service without a showing of good cause. See, e.g., Escalante v.

Tobar Constr. Inc., 8:18-cv-00980-PX, 2019 WL 109369, at *4 (D. Md. Jan. 3, 2019)
(“Mendez no longer controls the analysis.”); Robinson v. G D C, Inc., 193 F. Supp. 3d
577, 582 (E.D. Va. 2016) (“Mendez is no longer controlling authority in this circuit.”);

AST Prods., Inc. v. Medkote, LLC, 3:12-cv-05403, 2013 WL 2368071, at *4 (S.D. W.
Va. May 29, 2013) (holding that a district court may grant an extension for the time
to file service under Rule 4(m) even if good cause is not shown). The Fourth Circuit,
itself, in an unpublished opinion, has “cast doubt on the continued validity of the
holding in Mendez.” In re: Ethicon, 2016 WL 2588036, at *2 (citing Giacomo-Tano v.

Levine, 199 F.3d 1327 (4th Cir. 1999) (unpublished table decision) (“Even if a plaintiff
does not establish good cause, the district court may in its discretion grant an
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 extension of time for service.”)); see also Hansan v. Fairfax Cnty. Sch. Bd., 405 F.
App'x 793, 793–94 (4th Cir. 2010) (observing that “the district court has discretion to
extend the period if the plaintiff can show excusable neglect for his failure to serve”).
The court need not reach the merits of this debate. Even if the court has the
discretion to extend the time period for service absent a showing of good cause, the
plaintiffs have not demonstrated that an extension is warranted on these facts.
Assuming good cause is no longer an absolute requirement under Rule 4(m),
“the Court would still need to have some reasoned basis to exercise its discretion and
excuse the untimely service: the Court must give some import to the rule.” Hoffman

v. Baltimore Police Dep't, 379 F. Supp. 2d 778, 786 (D. Md. 2005). In considering
whether to extend the time for service where a plaintiff has failed to show good cause
for failing to effect timely service of process, courts have identified a number of factors
to consider. The Advisory Committee Note to Rule 4(m) states that “[r]elief may be
justified, for example, if the applicable statute of limitations would bar the refiled
action, or if the defendant is evading service or conceals a defect in attempted service.”

See Miller, 2014 WL 989204, at *3 (applying the factors set forth in the Advisory
Committee Note after finding that good cause did not exist). Other factors to consider
are whether the defendant had notice of the suit and whether the defendant has been
prejudiced. See AST Prods., 2013 WL 2368071, at *4. Finally, some courts have
applied an excusable neglect standard, relying on Federal Rule of Civil Procedure
6(b)(1)(B). See Hansan, 405 F. App'x at 793–94. In applying these factors, the court
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 again finds an extension unwarranted. And not without substantial importance, the
plaintiffs have failed to address any of these relevant factors in their response.
First, the plaintiffs have not asserted that the statute of limitations would bar
a refiled action. Instead, the plaintiffs emphasize that the claims covered by the
parties’ tolling agreement “arguably include those asserted by Plaintiffs in the
instant matter.” Pls.’ Resp. 1. The plaintiffs note that the parties have also agreed to
extend the termination date of the tolling agreement. These admissions weigh in
favor of dismissal. See Miller, 2014 WL 989204, at *3 (noting that “Plaintiff has not
asserted that the statute of limitations would bar a refiled action” in finding an
extension unwarranted). Additionally, as noted above, there is no indication that the
defendants have evaded service or concealed a defect in attempted service. And while
the defendants may have received informal notice of this action, it is unclear from the
plaintiffs’ response which defendants may have been prejudiced by the delay.2
Moreover, to the extent the Fourth Circuit requires a showing of excusable
neglect, no attempt at such a showing has been made here. See Hansan, 405 F. App’x
at 793–94 (noting that in addition to an extension for good cause shown, “the district
court has discretion to extend the [service] period if the plaintiff can show excusable
neglect for his failure to serve”) (emphasis added). The Fourth Circuit has explained
that excusable neglect “is not easily demonstrated, nor was it intended to be,” and
that the most important of the factors is the reason for the failure to timely file.

As discussed above, the parties’ letter agreement seems to show that two attorneys agreed to an
extension for service of process on behalf of more than fifty defendants.
2

9

 Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 534 (4th Cir. 1996); see
also Miller, 2014 WL 989204, at *4. “A party's failure to act with diligence precludes
a finding of excusable neglect.” Smith v. Look Cycle USA, 933 F. Supp. 2d 787, 791
(E.D. Va. 2013) (citing Robinson v. Wix Filtration Co., 599 F.3d 403, 413 (4th Cir.
2010)). Additionally, as it appears is the case here, ignorance of the rules,
inadvertence, or mistakes construing the rules generally do not constitute excusable
neglect. Stronach v. Va. State Univ., 577 F. Supp. 2d 788, 789 (E.D. Va. 2008).
The plaintiffs have not argued that excusable neglect exists, and I find no
indication that the plaintiffs have been diligent, which precludes such a finding. The
plaintiffs have completely and inexplicably ignored the Federal Rules of Civil
Procedure by failing to even attempt service. The plaintiffs’ sole reason for their
failure to timely effectuate service is that settlement negotiations between the parties
are still ongoing. This is plainly insufficient to demonstrate excusable neglect, to the
extent the Fourth Circuit requires such a showing.
An extension of time to effectuate service of process is not warranted in this
case even if good cause is no longer a requirement under Rule 4(m). “Such
procrastination should not be rewarded.” Tenenbaum v. PNC Bank Nat’l Ass’n, No.
DKC 10-2215, 2011 WL 2038550, at *6 (D. Md. May 24, 2011) (holding that even if a
court can extend the service period without good cause, it should not where the
plaintiff “largely took no steps to serve any defendant for several months”). Exercising
discretion to excuse untimely service in this case makes it “difficult to imagine what
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 scenario would not give rise to a free pass around the rule.” Hoffman, 379 F. Supp.
2d at 787.
III.

Conclusion

For the foregoing reasons, and notice having been given to the plaintiffs
pursuant to Federal Rule of Civil Procedure 4(m), the court FINDS that the plaintiffs
have not shown good cause for failing to serve the defendants in this civil action
within 90 days of the filing of the complaint. The court further FINDS that, to the
extent that the court may exercise its discretion to extend the time for service absent
a showing of good cause, such extension is not warranted under the facts presented
here. Therefore, it is ORDERED that this action be DISMISSED without prejudice
and retired from the docket of this court. Because the dismissal is without prejudice,
the plaintiffs may refile the action.
The court DIRECTS the Clerk to send a copy of this Memorandum Opinion
and Order to counsel of record and any unrepresented party.
ENTER:

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June 3, 2019