Opposing a motion to dismiss for a failure to timely serve a defendant under Rule 4(m) of the Federal Rules of Civil Procedure is the topic of this blog post. The author mainly works on cases from California, however the issues discussed herein are applicable to any civil case in a United States District Court that is within the jurisdiction of the Ninth Circuit Court of Appeals.

1. Opposing a motion to dismiss for a failure to timely serve a defendant under Rule 4(m) of the
Federal Rules of Civil Procedure is the topic of this document.
The author mainly works on cases from the State of California, however the issues discussed
herein are applicable to any civil case in a United States District Court that is within the
jurisdiction of the Ninth Circuit Court of Appeals.
Rule 4(m) states in pertinent part that, “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 or on
its 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.”
Any plaintiff facing a motion to dismiss under Rule 4(m) needs to emphasize the diligent efforts
they have made serve any defendant or defendants in order to defeat any motions to dismiss
under Rule 4(m) because of failure to effect service in a timely manner. If timely service has not
been made they should make a showing to the Court of good cause for the failure to timely serve
a defendant.
The Ninth Circuit Court of Appeals has characterized good cause, at a minimum, as "excusable
neglect." Electrical Specialty Co. v. Road Ranch Supply, Inc., 967 F.2d 309, 312 (9th Cir.1992)
And the United States Supreme Court has stated that district courts have broad discretion to
extend time for service under Rule 4(m). In Henderson v. United States, 517 U.S. 654, 661
(1996), the Supreme Court stated that Rule 4's 120-day time period for service "operates not as
an outer limit subject to reduction, but as an irreducible allowance."
The Ninth Circuit has also stated in a case from 2007 that courts making extension decisions
under Rule 4(m) may take the following factors into account: the statute of limitations bar,
prejudice to the defendant, a defendant having actual notice of the lawsuit or evading service, a
defendant concealing a defect in attempted service, and length of delay before eventual service.
And the Ninth Circuit has also stated in two different cases that a district court may extend the
time for service retroactively even after the 120-day service period has expired.
Attorneys or parties in civil litigation in United States District Court who wish to view a sample
opposition to a motion to dismiss for a failure to timely serve a defendant under Rule 4(m) of the
Federal Rules of Civil Procedure sold by the author can see below.
http://www.scribd.com/doc/137301520/Sample-Opposition-to-Rule-4-m-Motion-to-Dismiss-for-
United-States-District-Court
The author, Stan Burman, is a freelance paralegal who has worked in California and Federal
litigation since 1995.

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Copyright 2013 Stan Burman. All rights reserved.
<strong>DISCLAIMER:</strong>
Please note that the author, Stan Burman is NOT an attorney and as such is unable to provide any
specific legal advice. The author is NOT engaged in providing any legal, financial, or other
professional services, and any information contained herein is NOT intended to constitute legal
advice.
The materials and information contained herein have been prepared by Stan Burman for
informational purposes only and are not legal advice. Transmission of the information contained
herein is not intended to create, and receipt does not constitute, any business relationship
between the author and any readers. Readers should not act upon this information without
seeking professional counsel.