Shihshu Walter Wei v. State of Hawaii, 763 F.2d 370 (9th Cir. 1985). · Go Syfert
Search
Shihshu Walter Wei v. State of Hawaii, 763 F.2d 370 (9th Cir. 1985). Cases Citing This Book View Copy Cite
Quick Summary

Attorney inadvertence and a desire to amend a complaint do not constitute good cause for failing to serve process within the time limits prescribed by the rules of civil procedure.

A plaintiff filed an employment discrimination complaint but failed to serve the defendants within the 120-day limit prescribed by Rule 4(j) of the Federal Rules of Civil Procedure. The district court dismissed the action without prejudice and denied the plaintiff’s application for reinstatement. The plaintiff appeals, arguing that his attorney’s inadvertent failure to calendar the deadline and his desire to amend the complaint before service constitute good cause for the delay. The Ninth Circuit reviews the dismissal for abuse of discretion. The court holds that neither the desire to amend the complaint nor counsel’s inadvertence qualifies as good cause. The rule is intended to force parties and their attorneys to be diligent in prosecuting their causes of action. Allowing inadvertence to excuse non-service would render the good cause exception meaningless. Because the plaintiff did not demonstrate factors beyond his control preventing timely service, the district court properly dismissed the action.

343 citation events (87 in the last 25 years) across 71 distinct courts.
Strongest positive: Lien v. City of San Diego, No. 3:21-cv-00224 (S.D. Cal. Mar. 6, 2023) · Strongest negative: McWherter v. CBI Servs., Inc., 153 F.R.D. 161 (D. Haw. 1994)
Treatment trajectory · 1985 → 2026 · click a year to view as-of
1985 2005 2026
How cited ↗
Cited for
At page 372 Determining good cause for failure to timely serve127 citing cases“the rule is intended to force parties and their attorneys to be diligent in prosecuting their causes of action.”3 citing courts quote it · 124 listed here · 1 cautionary
  • McWherter v. CBI Servs., Inc., 153 F.R.D. 161 (D. Haw. 1994).published Cited "but see" · 3 cites
    (attorney’s failure to correctly calendar the 120 day limit does not constitute “good cause)
  • Lien v. City of San Diego, No. 3:21-cv-00224 (S.D. Cal. Mar. 6, 2023).
    ([Counsel’s] inadvertence . . . does not qualify as 6 good cause)
  • Benjamin Prentice v. OfficeMax North Am., Inc., No. 1:13-cv-00056 (D.V.I. Apr. 13, 2020).
    (A showing of ‘good cause’ within the meaning of Rule 4(j)[6] therefore contemplates more than a simple averment that counsel inadvertently forgot about the time limit that the rule imposes.)
  • Rose Duncan v. Megan Brennan, 692 F. App'x 387 (9th Cir. 2017).unpublished
    ([Rule 4] places the burden of showing good cause for failure to meet the [service] deadline upon the party on whose behalf service was required.)
  • Television Signal Corp. v. City & Cnty. of San Francisco, 193 F.R.D. 645 (N.D. Cal. 2000).published 2 cites
    (desir[ing] to amend complaint before effecting service does not constitute good cause)
  • Gregory Whale v. United States, 792 F.2d 951 (9th Cir. 1986).published 3 cites
    (If we were to hold that Wei’s attorney’s inadvertent failure to calendar the Rule 4(j) deadline constitutes ‘good cause,’ the good cause exception would swallow the rule.)
  • Boykin v. Com. Union Bank, 109 F.R.D. 344 (W.D. Tenn. 1986).published 2 cites
    (the inadvertence of Wei’s counsel likewise does not qualify as good cause)
  • Hack, No. 4:25-cv-00096 (D. Utah July 27, 2026).
    Utah 1993) (citing Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir.1985) (per curiam)), aff'd sub nom.
  • Hussein, No. 1:26-cv-01373 (S.D.N.Y. July 14, 2026).
    “It may, however, operate as a dismissal with prejudice when the action will be time-barred.” Putnam v. Morris, 833 F.2d 903 , 904-05 (10th Cir.1987) (citing Lovelace v. Acme Markets, Inc., 820 F.2d 81, 85 (3d Cir.1987); Wei v. State of Ha…
  • Sanchez, No. 2:25-cv-01985 (D. Nev. June 16, 2026).
    Reconsideration is warranted for Mr. Cooper but not VRM. 12 With the motions to dismiss resolved, I now turn to whether my order to dismiss the 13 claim against Mr. Cooper and VRM should be reconsidered.18 FRCP 60(b) permits 14 reconsidera…
Show 114 more citing cases
At page 371 Reviewing abuse of discretion on service challenges61 citing casesThe only example of good 28 cause provided by the legislative history [of Federal Rule of Civil Procedure 4(j), which 1 || was replaced by Rule 4(m)] is the obvious one of a defendant’s evasion of service.1 citing court put it this way · 56 listed here
  • Ewing v. Pollard, No. 3:19-cv-00855 (S.D. Cal. Sept. 27, 2019).
    (The only example of good 28 cause provided by the legislative history [of Federal Rule of Civil Procedure 4(j), which 1 || was replaced by Rule 4(m)] is the obvious one of a defendant’s evasion of service.)
  • Gregory Whale v. United States, 792 F.2d 951 (9th Cir. 1986).published 3 cites
    See Wei, 763 F.2d at 372 (“If we were to hold that Wei’s attorney’s inadvertent failure to calendar the Rule 4(j) deadline constitutes ‘good cause,’ the good cause exception would swallow the rule.”). *954 Whale’s counsel’s belief that ser…
  • Paul Lietz v. Drug Enf't Admin., No. 23-35603 (9th Cir. Jan. 24, 2025).unpublished
    (reviewing for abuse of discretion a district court’s dismissal for lack of timely service)
  • In re Interworks Unlimited Inc., No. CC-22-1027-STL (B.A.P. 9th Cir. Aug. 19, 2022).unpublished
    Cal. June 1, 2015) (citing Wei v. Hawaii, 763 F.2d 370, 371 (9th Cir.1985) (per curiam)); see also Bacon v. City & Cnty. of San Francisco, No. C04-3437 TEH, 2005 WL 1910924 , at *5 (N.D.
  • Alpha Prop. & Cas. Ins. Co. v. Freedom Movers LLC, No. 2:19-cv-05660 (D. Ariz. Mar. 4, 2020).
    See, e.g., Fimbres v. United States, 833 F.2d 138, 139 (9th Cir. 1987); Wei v. 1|| State of Hawaii, 763 F.2d 370, 371 (9th Cir. 1985). 2 Here, Alpha has established that Tyler is likely evading service.
  • Crossetti v. Cargill, Inc., No. 3:18-cv-30002, 2018 WL 2770130 (D. Mass. June 8, 2018).
    “The only example of good cause provided by the legislative history is the obvious one of a defendant’s evasion of service.” Shuman, 571 N.E.2d at 635 (quoting Wei v. State of Hawaii, 763 F.2d 370, 371 (9th Cir. 1985)).
  • Zophin & Keith, P.C. v. Sidell, 2015 Mass. App. Div. 43 (Mass. Dist. Ct., App. Div. 2015).published
    “The only example of good cause provided by the legislative history is the obvious one of a defendant’s evasion of service.” Id., quoting Wei v. State, 763 F.2d 370, 371 (9th Cir. 1985).
  • Asfour v. Brinda Realty Trust, 2009 Mass. App. Div. 289 (Mass. Dist. Ct., App. Div. 2009).published
    La. 1985). ‘The only example of good cause provided by the legislative history is the obvious one of a defendant’s evasion of service.” Shuman v. The Stanley Works, 30 Mass. App. Ct. 951, 953 (1991), quoting Wei v. State of Hawaii, 763 F.2…
  • Chenlen v. Philips Elec. North Am., 20 Mass. L. Rptr. 652 (Mass. Super. Ct. 2006).published
    “The only example of good cause provided by the legislative history is the obvious one of a defendant’s evasion of service.” Id., quoting Wei v. State, 763 F.2d 370, 371 (9th Cir. 1985).
  • Feuerhahn v. First USA Bank, 22 F. App'x 786 (9th Cir. 2001).unpublished
    Wei v. Hawaii, 763 F.2d 370, 371 (9th Cir.1985). 1 The district court abused its discretion by dismissing Feuer-hahn’s action because he had good cause for failing to timely serve the summons and complaint.
Show 46 more citing cases
At page 370 “the only example of good cause provided by the legislative history is the obvious one of a defendant's evasion of service.”0 citing cases4 citing courts quote it
    Retrieving the full opinion text from the archive…
    Shihshu Walter WEI, Plaintiff-Appellant,
    v.
    STATE OF HAWAII, Et Al., Defendants-Appellees
    84-2172.
    Court of Appeals for the Ninth Circuit.
    Jun 11, 1985.
    Published opinion
    763 F.2d 370
    1985 U.S. App. LEXIS 19822
    Charles S. Lima, Honolulu, Hawaii, for plaintiff-appellant., Tany Hong, Atty. Gen., State of Hawaii, Honolulu, Hawaii, for defendants-appellees.
    Farris, Pregerson, Beezer.
    Cited by 204 opinions  |  Published
    PER CURIAM:

    INTRODUCTION

    Shihshu Walter Wei filed his complaint in this employment discrimination and civil rights action on October 31, 1983. Wei made no attempt to serve the summons and complaint upon any of the defendants within the 120 day limit prescribed by Rule 4(j) of the Federal Rules of Civil Procedure. The district court dismissed the action without prejudice pursuant to Rule 4(j) on May 25, 1984. Wei filed an ex parte application for reinstatement of the action on June 4, 1984 together with an affidavit signed by his attorney stating that service had not been effected within the 120 day limit because Wei desired to add state contract claims to his complaint prior to service but “was delayed in amending the Complaint” and because counsel inadvertently had not calendared the 120 day limit. The district court denied the ex parte application on the same day that it was filed. Wei appeals the denial of his application for reinstatement, asserting that his counsel’s affidavit shows good cause for his failure to effect service timely. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.

    STANDARD OF REVIEW

    We review a district court’s dismissal of a complaint pursuant to Rule 4(j) for abuse of discretion. See Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir.1976) (district court’s dismissal of complaint pursuant to Rule 41(b) for failure to prosecute by willfully delaying service of process “will not be overturned unless the district judge clearly abused his [or her] discretion”). See also Rutledge v. Electric Hose & Rubber Co., 511 F.2d 668, 675 (9th Cir.1975).

    DISCUSSION

    Rule 4(j) of the Federal Rules of Civil Procedure 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.

    Fed.R.Civ.P. 4(j). Wei made no attempt to serve any of the defendants within the 120 day period prescribed by Rule 4(j). Although Wei does not raise the point, the district court apparently did not fulfill Rule 4(j)’s requirement of giving him notice of its intention to dismiss the action. In his application for reinstatement of the action, however, Wei had an adequate opportunity to demonstrate good cause for his failure to serve the defendants within the 120 day limit.

    Neither rule 4(j) nor its scant legislative history define “good cause.” The only example of good cause provided by the legislative history is the obvious one of a defendant’s evasion of service. 1982 U.S. Code Cong. & Ad.News 4434, 4446 n. 25.

    [*372] Wei’s desire to amend his complaint before effecting service does not constitute good cause. Wei has not attempted to explain how he “was delayed in amending the Complaint.” Moreover, he could have amended the original complaint after serving it upon the defendants. Fed.R.Civ.P. 15(a).

    The inadvertence of Wei’s counsel likewise does not qualify as good cause for Wei’s failure to comply with Rule 4(j). The rule is intended to force parties and their attorneys to be diligent in prosecuting their causes of action. See Geller v. Newell, 602 F.Supp. 501, 502 (S.D.N.Y.1984) (“The harsh sanction of Rule 4® is appropriate to those cases in which non-service was the result of mere inadvertence.”); Arroyo v. Wheat, 102 F.R.D. 516, 518 (D.Nev.1984) (Rule 4(j) is aimed at “[ijadvertent or heedless non-service”); Coleman v. Greyhound Lines, Inc., 100 F.R.D. 476, 477 (N.D.Ill.1984) . See also Davidson v. Keenan, 740 F.2d 129, 132 (2d Cir.1984) (inadvertence or oversight of counsel does not constitute “excusable neglect” that might justify an extension of time for filing papers under Fed.R.Civ.P. 6(b)(2)).

    Wei does not contend that either he or his attorney attempted to serve the defendants, cf. Geller, 602 F.Supp. 501, was confused about the requirements for service of process, cf. Arroyo, 102 F.R.D. 516, or was prevented from effecting service within the 120 day limit by factors beyond his control. Cf. Moorehead v. Miller, 102 F.R.D. 834 (D.V.I.1984). If we were to hold that Wei’s attorney’s inadvertent failure to calendar the Rule 4® deadline constitutes “good cause,” the good cause exception would swallow the rule. The rule places the burden of showing good cause for failure to meet the 120 day deadline upon the party on whose behalf service was required. Counsel always could aver that he or she inadvertently forgot about the 120 day limit. In most cases, it would be extremely difficult to refute such an averment. Cf. Redding v. Essex Crane Rental Corp. of Alabama, 752 F.2d 1077, 1078 (5th Cir.1985) (plaintiff's counsel intentionally refused to comply with Rule 4® in order to manipulate claim in state court). A showing of “good cause” within the meaning of Rule 4® therefore contemplates more than a simple averment that counsel inadvertently forgot about the time limit that the rule imposes.

    If Wei’s action is dismissed, his employment discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, will be time barred. Wei asks us to balance his deprivation of this federal cause of action against the policy behind Rule 4® of promoting prompt movement of civil actions through the federal courts. But Congress balanced such policy considerations in enacting Rule 4®. By providing that district courts “shall” dismiss a complaint served over 120 days after its filing unless service took place in a foreign country or good cause for untimely service has been shown, Congress mandated dismissal in the circumstances of this case. We recognize that Wei may be harmed by his attorney’s neglect, but “litigants are bound by the conduct of their attorneys, absent egregious circumstances which are not present here.” Kung v. FOM Investment Corp., 563 F.2d 1316, 1318 (9th Cir.1977) (citing Anderson v. Air West, Inc., 542 F.2d 522, 526 (9th Cir.1976)).

    AFFIRMED.