Sheldon Lovelace v. Acme Markets, Inc, 820 F.2d 81 (3rd Cir. 1987). · Go Syfert
Sheldon Lovelace v. Acme Markets, Inc, 820 F.2d 81 (3rd Cir. 1987). Cases Citing This Book View Copy Cite
“half-hearted' efforts by counsel to effect service ... do not necessarily excuse a delay, even when dismissal results in the plaintiffs case being time-barred due to the fact that the statute of limitations on the plaintiffs cause of action has run.”
175 citation events (38 in the last 25 years) across 50 distinct courts.
Strongest positive: Mused v. United States of America Department of Agriculture Food & Nutrition Service (nywd, 1996-09-19)
Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987 2006 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Mused v. United States of America Department of Agriculture Food & Nutrition Service (4×) also: Cited as authority (rule)
W.D.N.Y. · 1996 · quote attribution · 2 verbatim quotes · confidence high
half-hearted' efforts by counsel to effect service ... do not necessarily excuse a delay, even when dismissal results in the plaintiffs case being time-barred due to the fact that the statute of limitations on the plaintiffs cause of action has run.
cited Cited as authority (rule) Daneshwar Persaud v. University of Rhode Island, et al.
D.R.I. · 2026 · confidence medium
Col. 2003); Lovelace v. Acme Mkts., Inc., 820 F.2d 81, 83 (3d Cir. 1987) (quoting 128 CONG.
cited Cited as authority (rule) Williams Childs Shirah v. Leland Falcon, et al.
E.D. La. · 2026 · confidence medium
Attached to this Order is a blank WAIVER OF THE SERVICE 1 Lovelace v. Acme Mkts., Inc., 820 F.2d 81, 83 (3d Cir. 1987) (quoting 128 CONG.
discussed Cited as authority (rule) Shorty v. Hill
S.D. Cal. · 2025 · confidence medium
“In exercising this discretion, courts have been mindful that Congress amended 16 Rule 4 ‘primarily to relieve United States marshals of the burden of serving summonses 17 and complaints in private civil actions.’” Bax v. Executive Office for U.S. Attorneys, 216 18 F.R.D. 4 , 4 (D.D.C. 2003) (quoting Lovelace v. Acme Mkts., Inc., 820 F.2d 81, 83 (3d Cir. 19 1987)). 20 According to the Congressional record, “the plaintiff is expected first to seek 21 service by private means whenever feasible rather than impose the burden on the 22 Marshals Service;” thus, court orders directing U.S…
cited Cited as authority (rule) JOHNSON v. WILLIAMS
W.D. Pa. · 2025 · confidence medium
Oct. 27, 2023) (quoting Lovelace v. Acme Mkts., Inc., 820 F.2d 81, 83 (3d Cir.1987) (quoting 128 Cong.
discussed Cited as authority (rule) Pollins v. Feuerstein
virginislands · 2025 · confidence medium
Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3d Cir 1987) (citing 128 Cong.
discussed Cited as authority (rule) Jackson v. Wray
N.D. Tex. · 2023 · confidence medium
The Third and Ninth Circuits have recognized that in 1983, Congress amended Rule 4 “primarily to relieve United States marshals of the burden of serving summonses and complaints in private civil actions.” Lovelace v. Acme Mkts., Inc., 820 F.2d 81, 83 (3d Cir.1987) (quoting 128 Cong.
discussed Cited as authority (rule) Castillos v. Carmelo Arias (2×) also: Cited "see, e.g."
M.D. Penn. · 2023 · confidence medium
Moreover, the Third Circuit has “also held that ‘[h]alf-hearted’ efforts by counsel to effect service of process prior to the deadline do not necessarily excuse a delay, even when dismissal results in the plaintiff's case being time- barred due to the fact that the statute of limitations on the plaintiff's cause of action has run.” Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3d Cir. 1987).
discussed Cited as authority (rule) Cathy v. Palma
S.D. Cal. · 2023 · confidence medium
In short, the aim is to encourage use 18 of methods that do not involve marshals.” 93 F.R.D. 255 , 262. 19 In exercising its discretion, courts must be mindful that Congress amended Rule 4 20 “‘primarily to relieve United States marshals of the burden of serving summonses and 21 complaints in private civil actions.’” Bax v. Executive Office for U.S. Attorneys, 216 F.R.D. 22 4, 4 (D.D.C. 2003) (quoting Lovelace v. Acme Mkts., Inc., 820 F.2d 81, 83 (3d Cir. 1987)); 23 Boudette, 923 F.2d at 757 (noting that the legislative history of Rule 4 shows congressional 24 intent “to relieve th…
discussed Cited as authority (rule) Renteria v. Cuevas
S.D. Cal. · 2022 · confidence medium
P. 4(c)(3). 1 “In exercising this discretion, courts have been mindful that Congress amended Rule 2 4 ‘primarily to relieve United States marshals of the burden of serving summonses and 3 complaints in private civil actions.’” Bax v. Executive Office for U.S. Attorneys, 216 F.R.D. 4 4, 4 (D.D.C. 2003) (quoting Lovelace v. Acme Mkts., Inc., 820 F.2d 81, 83 (3d Cir. 1987)); 5 Boudette v. Barnette, 923 F.2d 754, 757 (9th Cir. 1991) (noting that the legislative history 6 of Rule 4 shows congressional intent “to relieve the marshal of the duty of routine[] 7 servi[ce]” in private civil …
cited Cited as authority (rule) Harris v. McDonald
M.D. Penn. · 2022 · confidence medium
Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (1987) (citations omitted).
discussed Cited as authority (rule) Edwards v. Pollard
S.D. Cal. · 2022 · confidence medium
P. 4(c)(3). 20 “In exercising this discretion, courts have been mindful that Congress amended Rule 21 ‘primarily to relieve United States marshals of the burden of serving summonses and 22 complaints in private civil actions.’” Bax v. Executive Office for U.S. Attorneys, 216 F.R.D. 23 ||4, 4 (D.D.C. 2003) (quoting Lovelace v. Acme Mkts., Inc., 820 F.2d 81, 83 (3d Cir. 1987)); 24 || Boudette v. Barnette, 923 F.2d 754, 757 (9th Cir. 1991) (noting that the legislative history 25 Rule 4 shows congressional intent “to relieve the marshal of the duty of routine[] 26 || servi[ce]” in priv…
discussed Cited as authority (rule) Vandeven v. Wyndham Vacation Resorts, Inc.
M.D. Tenn. · 2021 · confidence medium
Mere “lack of prejudice and actual notice [to the defendant] are insufficient” to establish good cause, as is “[m]istake of counsel or ignorance of the rules.” Id. (citing Moncrief v. Stone, 961 F.2d 595, 597 (6th Cir. 1992)); accord Nafziger, 467 F.3d at 521–22 (affirming dismissal under Rule 4(m) where the justifications offered to establish “good cause” were (1) that counsel had discussed waiver of service of process with the defendant; (2) “significant personal matters involving the welfare of Counsel’s young children caused Counsel substantial problems,” and (3) “the…
discussed Cited as authority (rule) Granger v. Nesbitt
D. Mass. · 2021 · confidence medium
“When the [rule 4(j)] period reaches its expiration and adequate proof of service of process has not been received, the plaintiff must take additional steps to ensure timely service of process, or, in the alternative, move under [rule] 6(b) for an enlargement of the time to effect service of process.” Id. at 27 (quoting Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3d Cir. 1987)).
discussed Cited as authority (rule) Dixon v. Altman
S.D. Ga. · 2021 · confidence medium
“In exercising this discretion, courts have been mindful that Congress amended Rule 4 ‘primarily to relieve United States marshals of the burden of serving summonses and complaints in private civil actions.’” Id. (quoting Lovelace v. Acme Mkts., Inc., 820 F.2d 81, 83 (3d Cir. 1987)).
discussed Cited as authority (rule) Vela v. Christian
N.D. Tex. · 2021 · confidence medium
The Third and Ninth Circuits have recognized that in 1983, Congress amended Rule 4 “primarily to relieve United States marshals of the burden of serving summonses and complaints in private civil actions.” Lovelace v. Acme Mkts., Inc., 820 F.2d 81, 83 (3d Cir.1987) (quoting 128 Cong.
discussed Cited as authority (rule) Youth with a Mission v. Certain Underwriters at Lloyds London Subscribing to Policy No: B0879C000961700
D.V.I. · 2020 · confidence medium
The reason for non-compliance here is a mistake by counsel in calendaring the deadline for service, but delay due to “inadvertence of counsel . . . need not be excused.” Petrucelli, 46 F.3d at 1307 (citing Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3d Cir. 1987), cert. denied, 484 U.S. 965 (1987)).
cited Cited as authority (rule) SHULER v. TIME PAYMENT CORP
E.D. Pa. · 2020 · confidence medium
No. 32 at 2. 55 MCI, 71 F.3d at 1097 . 56 Id. (citing Lovelace v. Acme Markets, Inc., 820 F.2d 81, 85 (3d Cir. 1987). 57 See Fed.
discussed Cited as authority (rule) Ballard v. Takeda Pharmaceuticals America, Inc.
Del. Super. Ct. · 2017 · confidence medium
This comports with the Court’s statement in Desantis that “Rule 4(j) must be strictly construed unless plaintiff can establish good cause for its failure to comply.”72 As to Plaintist prejudice argument, the Delaware Supreme Court has explained that “there is nothing in [Rule 4(j)] that excuses noncompliance when it is alleged that a defendant is not prejudiced by the failure of service.”73 The record before the Court demonstrates that Plaintiff’s counsel failed to act as a reasonably prudent attorney should and would have acted under the 71 Pl.’s Mot. 1111 9, 11 (quoting Dolan, …
discussed Cited as authority (rule) Hahn v. Office & Professional Employees International Union
S.D.N.Y. · 2015 · confidence medium
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 Hawaii, 763 F.2d 370, 372 (9th Cir.1985) (per curium)).
discussed Cited as authority (rule) Asfour v. Brinda Realty Trust
Mass. Dist. Ct., App. Div. · 2009 · confidence medium
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.2d 370, 371 (9th Cir. 1985), and citing Lovelace v.Acme Mkts., Inc., 820 F.2d 81, 84 (3d Cir. 1987).
discussed Cited as authority (rule) United States v. Rodrigue (2×) also: Cited "see, e.g."
Ct. Intl. Trade · 2009 · confidence medium
Petrucelli v. Bohringer and Ratzinger, GMBH, 46 F.3d 1298, 1307 (3d Cir.1995) (quoting Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3d Cir.1987)).
discussed Cited as authority (rule) Sykes v. Blockbuster Video
3rd Cir. · 2006 · signal: cf. · confidence medium
See Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir.1988) (pro se plaintiffs ignorance of service rules does not constitute good cause); cf. Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3d Cir.1987) (inadvertence of counsel does not constitute good cause for failure to timely serve defendants under former Rule 4(j)).
discussed Cited as authority (rule) McKinnis v. Hartford Life
E.D. Pa. · 2003 · confidence medium
LEGAL STANDARD When considering a motion to dismiss a complaint for lack of service of process under Federal Rule of Civil Procedure 40m), 1 this Court must consider whether “service of the summons and the complaint [was] made in time and [whether] plaintiff fail[ed] to demonstrate good cause for the delay.” Lovelace v. Acme Markets, 820 F.2d 81, 84 (3d Cir.1987).
discussed Cited as authority (rule) Bax v. Executive Office for U.S. Attorneys
D.D.C. · 2003 · confidence medium
In exercising this discretion, courts have been mindful that Congress amended Rule 4 “primarily to relieve United States marshals of the burden of serving summonses and complaints in private civil actions.” Lovelace v. Acme Mkts., Inc., 820 F.2d 81, 83 (3d Cir.1987) (quoting 128 Cong.
discussed Cited as authority (rule) Commissioner of Revenue v. Carrigan (2×)
Mass. App. Ct. · 1998 · confidence medium
See Braxton v. United States, supra at 242; Lovelace v. Acme Markets Inc., 820 F.2d 81, 84-85 (3d Cir.), 484 U.S. 965 (1987).
discussed Cited as authority (rule) Barr v. Barr (In Re Barr)
Bankr. W.D. Wash. · 1998 · confidence medium
Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1307 (3d Cir.1995) (citing Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3d Cir.1987)); Bryant v. Rohr Indus., Inc., 116 F.R.D. 530, 533 (W.D.Wash.1987).
cited Cited as authority (rule) Brandon H. v. Kennewick School Dist. No. 17
9th Cir. · 1998 · confidence medium
See Cox v. Sandia Corp., 941 F.2d 1124, 1125 (10th Cir.1991); Lovelace v. Acme Mkts., Inc., 820 F.2d 81, 84-85 (3d Cir.1987).
discussed Cited as authority (rule) Spencer v. Steinman
E.D. Pa. · 1997 · confidence medium
However, the Third Circuit has cautioned district courts that good cause cannot be found based upon “ ‘half-hearted’ efforts by counsel to effect service or process prior to the [120-day] deadline,” Petrucelli, 46 F.3d 1298, 1307 (3d Cir.1995) (citing Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3d Cir.)), cert. denied, 484 U.S. 965 , 108 S.Ct. 455 , 98 L.Ed.2d 395 (1987), and has further counselled that “[e]ven when delay [in timely service] results from inadvertence of counsel, it need not be excused [by finding good cause.]” Petrucelli, 46 F.3d at 1307 (citing Braxton v. U.S…
discussed Cited as authority (rule) Myers v. Secretary of Department of Treasury (2×) also: Cited "see"
E.D.N.Y · 1997 · confidence medium
See McGregor v. United States, 933 F.2d 156, 160 (2d Cir.1991) (holding that Federal Tort Claims Act plaintiffs failure to serve Attorney General within 120 days after filing her complaint was not excusable for “good cause,” as record showed that it was result of attorney neglect, rather than misleading government conduct); Lovelace v. Acme Mkts., Inc., 820 F.2d 81, 84 (3d Cir.), cert. denied, 484 U.S. 965 , 108 S.Ct. 455 , 98 L.Ed.2d 395 (1987) (“Legislative history provides only one example where an extension for good cause would be permissible — specifically when the defendant inten…
discussed Cited as authority (rule) Glasser v. Degenhart
Mass. Dist. Ct., App. Div. · 1995 · confidence medium
The time limit of Rule 4(j) is to be strictly applied, Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3rd Cir. 1987); and attorneys have been cautioned to “[tjreat the 120 days with the respect reserved for a time bomb,” Braxton v. United States, 817 F.2d 238, 241 (3rd Cir. 1987), quoting from Siegel, Practice Commentary on Amendment of Federal Rule 4 (Eff.
examined Cited as authority (rule) David Petrucelli Tracy A. Petrucelli, Husband and Wife v. Bohringer and Ratzinger, Gmbh Ausdereitungsanlagen Jake Diel Construction MacHine Inc. Teco Electric and MacHine Company, Ltd. v. Excel Recycling & Manufacturing, Inc., Third-Party David Petrucelli and Tracy A. Petrucelli (4×) also: Cited "see"
3rd Cir. · 1995 · confidence medium
Lovelace v. Acme Markets, Inc., 820 F.2d 81, 83 (3d Cir.), cert. denied, 484 U.S. 965 , 108 S.Ct. 455 , 98 L.Ed.2d 395 (1987); Braxton v. United States, 817 F.2d 238, 242 (3d Cir.1987). 9 29 Petrucelli argues that the following circumstances constitute good cause: (1) he was under the mistaken belief that the defendant had been served since he spoke to someone in the Office of the Secretary of State of Oklahoma via telephone and was verbally assured that proper service was effected; and (2) he was told by APS that Jake Diel could not be served in Texas, but could only be served in Oklahoma.
examined Cited as authority (rule) Petrucelli v. Bohringer & Ratzinger (8×) also: Cited "see"
3rd Cir. · 1995 · confidence medium
Lovelace v. Acme Markets, Inc., 820 F.2d 81, 83 (3d Cir.), cert. denied, 484 U.S. 965 , 108 S. Ct. 455 (1987); Braxton v. United States, 817 F.2d 238, 242 (3d Cir. 1987).9 Petrucelli argues that the following circumstances constitute good cause: (1) he was under the mistaken belief that the defendant had been served since he spoke to someone in the Office of the Secretary of State of Oklahoma via telephone and was verbally assured that proper service was effected; and (2) he 8 .
cited Cited as authority (rule) Kaczmarczik v. Van Meter (In Re Van Meter)
9th Cir. BAP · 1994 · confidence medium
Lovelace v. Acme Markets, Inc., 820 F.2d 81, 83 (3rd Cir.1987), cert. denied, 484 U.S. 965 , 108 S.Ct. 455 , 98 L.Ed.2d 395 (1987).
cited Cited as authority (rule) Del Raine v. Carlson
S.D. Ill. · 1994 · confidence medium
Fields, 703 F.Supp. at 752 (citing Lovelace v. ACME Markets, 820 F.2d 81, 84 (3d Cir.1987)); Coleman v. Greyhound Lines, Inc., 100 F.R.D. 476, 478 (N.D.Ill. 1984).
cited Cited as authority (rule) Sullivan v. Mitchell
N.D. Ill. · 1993 · confidence medium
Geiger, 850 F.2d at 333 n. 5.; Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3rd Cir.1987).
discussed Cited as authority (rule) Cloyd v. Arthur Anderson & Co.
D. Utah · 1993 · confidence medium
Geiger, 850 F.2d at 334 (citing 1982 U.S.C.C.A.N. 4434, 4441-42); see also Putnam, 833 F.2d at 904-05 (dismissal for failure to serve within time period may operate as dismissal with prejudice when action will be time-barred); Townsel v. County of Contra Costa, 820 F.2d 319, 321 (9th Cir.1987) (stating that Congress “balanced the possible loss of a litigant’s federal cause of action against the need to encourage diligent prosecution of lawsuits.”); Lovelace v. Acme Markets, Inc., 820 F.2d 81, 85 (3d Cir.), cert. denied, 484 U.S. 965 , 108 S.Ct. 455 , 98 L.Ed.2d 395 (1987) (determining th…
discussed Cited as authority (rule) Seal v. Riverside Federal Savings Bank
E.D. Pa. · 1993 · confidence medium
The Third Circuit has stressed that Rule 4(j)’s 120-day limit to effect service of process is to be “strictly applied.” Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3d Cir.1987). “[I]f service of the summons and the complaint is not made in time and the plaintiff fails to demonstrate good cause for the delay ‘the court must dismiss the action as to the unserved defendant.’ ” Id. (emphasis in original) (quoting from the legislative history of Rule 4(j)).
discussed Cited as authority (rule) Smith v. ICI Americas, Inc. (2×)
D. Del. · 1992 · confidence medium
Lovelace v. Acme Markets, Inc., 820 F.2d 81, 83 (3rd Cir.1987).
discussed Cited as authority (rule) James R. STINSON, Carmeline Stinson, H/W v. KAISER GYPSUM COMPANY, INC., Appellant
3rd Cir. · 1992 · confidence medium
Lovelace v. Acme Markets, Inc., 820 F.2d 81, 85 (3d Cir.), cert. denied, 484 U.S. 965 , 108 S.Ct. 455 , 98 L.Ed.2d 395 (1987); Powell v. Starwalt, 866 F.2d 964, 966 (7th Cir.1989); United States for Use and Benefit of DeLoss v. Kenner General Contractors, Inc., 764 F.2d 707 , 711 n. 5 (9th Cir.1985); Maineline Industries, Inc. v. Palco Linings, Inc., 113 F.R.D. 148, 150 (D.Nev.1986).
discussed Cited as authority (rule) Pellegrin & Levine, Chartered v. Phillip R. Antoine
D.C. Cir. · 1992 · confidence medium
Lovelace v. Acme Markets, Inc., 820 F.2d 81, 83 (3d Cir.), cert. denied, 484 U.S. 965 , 108 S.Ct. 455 , 98 L.Ed.2d 395 (1987); Fournier v. Textron, Inc., 776 F.2d 532, 534 (5th Cir.1985); Wei v. Hawaii, 763 F.2d 370, 371 (9th Cir.1985).
discussed Cited as authority (rule) 57 Fair empl.prac.cas. (Bna) 288, 20 fed.r.serv.3d 940 Leonard Wilson v. Jane Kenny, in Her Official Capacity as Director of Action, Leonard Wilson v. Jane Kenny, in Her Official Capacity as Director of Action
4th Cir. · 1991 · confidence medium
See McDonald v. United States, 898 F.2d 466, 468 (5th Cir.1990) (Rule 4(j) dismissal was not unwarranted merely because limitations period on plaintiff's cause of action had run); Lovelace, 820 F.2d at 85 (because Rule 4(j) must be strictly applied, it matters not that a dismissal compelled by the rule could spell the end of the cause of action); Wei, 763 F.2d at 372 (absent circumstances more egregious than barring the cause of action, a Rule 4(j) dismissal cannot be avoided). 12 Wilson's cited authorities are inapposite.
discussed Cited as authority (rule) Shuman v. Stanley Works (2×) also: Cited "see, e.g."
Mass. App. Ct. · 1991 · confidence medium
“The only example of good cause provided by the legislative history is the obvious one of a defendant’s evasion of service.” Wei, supra. Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3d Cir. 1987).
discussed Cited as authority (rule) Friedman v. Estate Of (2×) also: Cited "see, e.g."
6th Cir. · 1991 · signal: cf. · confidence medium
Cf. Lovelace, 820 F.2d at 84-85 (plaintiff cannot rely on misrepresentation of specially appointed process server that process had been served on defendant).
discussed Cited as authority (rule) Friedman v. Estate of Presser (2×) also: Cited "see, e.g."
6th Cir. · 1991 · signal: cf. · confidence medium
Cf. Lovelace, 820 F.2d at 84-85 (plaintiff cannot rely on misrepresentation of specially appointed process server that process had been served on defendant).
discussed Cited as authority (rule) Wickes v. Aid Associates, Inc. (2×) also: Cited "see"
D. Del. · 1991 · confidence medium
“The 120-day limit to effect service of process, established by Fed.R.Civ.P. 4® is to be strictly applied, and if service of the summons and complaint is not made in time and the plaintiff fails to demonstrate good cause for the delay, ‘the court must dismiss this action as to the unserved defendant.’ ” Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3d Cir.1987), (quoting 128 Cong.Rec.
discussed Cited as authority (rule) Joyce Zankel and Charles Zankel v. United States
2d Cir. · 1990 · confidence medium
Davidson v. Keenan, 740 F.2d 129, 132 (2d Cir.1984); Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3d Cir.), cert. denied, 484 U.S. 965 , 108 S.Ct. 455 , 98 L.Ed.2d 395 (1987); Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir.1985).
cited Cited as authority (rule) Swan v. Hibel & Hoang
Fla. Cir. Ct. · 1990 · confidence medium
Floyd v United States, 900 F.2d 1045, 1046 (7th cir. 1990); Geiger v Allen, 850 F.2d 330, 331 (7th Cir. 1988); Lovelace v Acme Markets, Inc., 820 F.2d 81, 84 (3d Cir. 1987).
cited Cited as authority (rule) Sheets v. Schlear
D.N.J. · 1990 · confidence medium
Lovelace v. ACME Mar kets, Inc., 820 F.2d 81, 84 (3d Cir.1987), cert. denied, 484 U.S. 965 , 108 S.Ct. 455 , 98 L.Ed.2d 395 (1987).
discussed Cited as authority (rule) Hilmon Co. (V.I.) v. Hyatt International
3rd Cir. · 1990 · confidence medium
“The 120 day limit to effect service of process, established by Fed.R.Civ.P. 4(j) is to be strictly applied, and if service of the summons and the complaint is not made in time and the plaintiff fails to demonstrate good cause for the delay ‘the court must dismiss this action as to the unserved defendant.’ ” Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3d Cir.) (quoting 128 Cong.Rec.
Retrieving the full opinion text from the archive…
Sheldon LOVELACE, Appellant,
v.
ACME MARKETS, INC.
86-1690.
Court of Appeals for the Third Circuit.
Jul 13, 1987.
820 F.2d 81
Harvey L. Anderson (argued), Fine and Staud, Philadelphia, Pa., for appellant., Herbert G. Keene, Jr. (argued), Stephen C. Baker, Stradley, Ronon, Stevens & Young, Philadelphia, Pa., for appellee.
Gibbons, Mansmann, McCUNE.
Cited by 102 opinions  |  Published

OPINION OF THE COURT

GIBBONS, Chief Judge:

This appeal presents a question concerning the interrelationship between Fed.R. Civ.P. 4(c)(2)(B)(iii) and the 120-day period permitted by Fed.R.Civ.P. 4(j) to effect service of process. We must determine whether the district court properly concluded that the plaintiff’s reliance upon the representation of a specially-appointed process server, that service had been made on time, failed to establish good cause to excuse the plaintiff’s failure to make service of process upon the defendant until 55 days after the 120-day time limit required by Fed.R.Civ.P. 4(j) had expired. We will affirm.

I.

In October, 1976, the plaintiff, Sheldon Lovelace, was hired as a cashier by the defendant, Acme Markets, Inc. (Acme). Lovelace, who is black, contends that throughout the course of his employment he was discriminated against on the basis of his race. He claims that on May 12, 1984 this discriminatory treatment culminated in his discharge.

On October 29, 1984, Lovelace filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in which he alleged that Acme had discriminated against him on the basis of race. The EEOC issued a Notice of Right to Sue on August 1, 1985. On October 29, 1985 Lovelace filed a complaint in the United States District Court for the Eastern District of Pennsylvania alleging a violation of 42 U.S.C. § 2000e-2 (1982) and various pendent state claims.

Lovelace’s counsel selected the Fed.R. Civ.P. 4(c)(2)(B)(iii) method for service of process and filed a Motion for Special Ap[*83] pointment to Serve Process designating Michael Damiano for the purpose of serving the summons and complaint upon Acme. The district court granted this motion on October 29, 1985 and Damiano was provided with all the necessary papers and directions for effective service of process upon Acme. On December 2, 1985, Lovelace’s counsel received a bill from Damiano that represented that process had been served upon Acme.

On February 26, 1986, coincidentally the 120th day following the institution of the action, and as such the last day under Fed.R.Civ.P. 4(j) to effect timely service of process upon Acme, Lovelace’s counsel sent a letter to Damiano requesting adequate proof of such service. Lovelace’s counsel was told that the necessary proof would be forthcoming.

On April 1, 1986, Lovelace’s counsel received a letter from the clerk for the district to which the case was assigned which stated, first, that the court had not yet received the affidavit of proof of service upon Acme required by Fed.R.Civ.P. 4(g) and, second, that unless Acme were served within 15 days from the date of the letter, the court would commence proceedings to dismiss the action.

Service of process was finally made upon Acme on April 23, 1986, eight days after the deadline set forth in the April 1 letter and 55 days after the deadline established by Fed.R.Civ.P. 4(j).

II.

Acme brought a motion to dismiss for failure to serve process within the 120-day period provided by Fed.R.Civ.P. 4(j) without good cause. Lovelace contended that the district court had good cause to excuse his failure to serve process within the 120-day period. To support that contention Lovelace alleged that he was misled by the representation of Damiano that process had been served on time when in fact it had not been.

The district court rejected Lovelace’s contentions and granted Acme’s motion to dismiss without prejudice. [1] The district court concluded that Lovelace did not demonstrate good cause to permit an extension of the 120-day limit. The court determined that Lovelace should have taken additional steps to ensure timely service of process since, under Fed.R.Civ.P. 4(a), the burden to ensure proper and timely service rested upon Lovelace and his attorney.

Lovelace subsequently brought a motion seeking to have the district court reconsider its determination. The dismissal of that motion led to this appeal. [2]

III.

The district court’s determination that good cause had not been shown to justify an extension of the 120-day limit established by Fed.R.Civ.P. 4(j) will be affirmed unless it is clear that the district court abused its discretion. See Fournier v. Textron, Inc., 776 F.2d 532, 534 (5th Cir.1985); Wei v. Hawaii, 763 F.2d 370, 371 (9th Cir. 1985); Edwards v. Edwards, 754 F.2d 298, 299 (8th Cir.1985).

The 1983 amendments to Fed.R. Civ.P. 4 “were intended primarily to relieve United States marshals of the burden of serving summonses and complaints in private civil actions.” 128 Cong. Rec. H9848, 9849 (daily ed. Dec. 15, 1982), reprinted in 1982 U.S.Code Cong. & Admin.News 4434, 4437. Thus, the general service of process rule, Fed.R.Civ.P. 4(c)(2)(A), requires that the “summons and complaint shall ... be[*84] served by any person who is not a party and is not less than 18 years of age.” Fed.R.Civ.P. 4(c)(2)(A). Service of the summons and complaint by United States marshals, their deputies, and specially-appointed process servers provided for in Fed.R. Civ.P. 4(c)(2)(B) is a limited exception to that general rule. While we do not believe that a specially-appointed process server was necessary in order that service be properly effected in this action, [3] such a process server was appointed by the court and it was incumbent upon the plaintiff and his attorney to ensure timely service of process. See Fed.R.Civ.P. 4(a). The 120-day limit to effect service of process, established by Fed.R.Civ.P. 4(j) is to be strictly applied, and if service of the summons and the complaint is not made in time and the plaintiff fails to demonstrate good cause for the delay “the court must dismiss the action as to the unserved defendant.” 128 Cong.Rec. H9848, 9850 (daily ed. Dec. 15, 1982) (emphasis added), reprinted in 1982 U.S. Code Cong. & Admin.News 4434, 4441. It was in accordance with the strict interpretation of the 120-day rule intended by its drafters that the district court concluded that good cause had not been shown to excuse the plaintiff’s delay.

Legislative history provides only one example where an extension for good cause would be permissible — specifically when the defendant intentionally evades service of process. 128 Cong.Rec. H9848, 9852 n. 25 (daily ed. Dec. 15, 1982), reprinted in 1982 U.S. Code Cong. & Admin.News 4434, 4446 n. 25.

“Half-hearted” efforts by counsel to effect service of process prior to the deadline do not necessarily excuse a delay, even when dismissal results in the plaintiff's case being time-barred due to the fact that the statute of limitations on the plaintiff’s cause of action has run. See United States For Use of DeLoss v. Kenner General Contractors, Inc., 764 F.2d 707, 710 (9th Cir.1985). Furthermore, when a delay is the result of inadvertance of counsel, it need not be excused. See Wei, 763 F.2d at 372. Similarly, when there is a lack of diligent effort to ensure timely service of process, an extension of the time for service may be refused. See Coleman v. Greyhound Lines, Inc., 100 F.R.D. 476, 477-78 (N.D.Ill.1984).

The strictly-applied time limit of Fed.R.Civ.P. 4(j) and the requirement of Fed.R.Civ.P. 6(a) that the plaintiff and his counsel ensure timely service of process combine to require that the plaintiff and his counsel be denied the luxury of sitting back and waiting until the 120-day period expires before ensuring that process has been served upon the defendant. When the 120-day period reaches its expiration and adequate proof of service of process has not been received, the plaintiff must take additional steps to ensure timely service of process, or, in the alternative, move under Fed.R.Civ.P. 6(b) for an enlargement of the time to effect service of process. See 128 Cong.Rec. H9848, 9851 (daily ed. Dec. 15,1982), reprinted in 1982 U.S. Code Cong. & Admin.News 4434, 4442; 2 J. Moore, Moore’s Federal Practice 114.46 (2d ed. 1986); 4 C. Wright & A. Miller, Federal Practice and Procedure § 1138 (2d ed. Supp.1985).

The misplaced reliance upon the word of the specially-appointed process server produced in the plaintiff and his coun[*85] sel a belief that process had been served upon the defendant. Secure in that belief, plaintiff and his counsel inadvertently permitted the 120-day period to lapse despite the fact that they were not in possession of adequate proof of service of process upon the defendant. It cannot be said that the acts of plaintiff and his counsel as the 120-day period reached its expiration constituted diligent efforts to ensure timely service of process. Alternative means to effect timely service of process were available, as was Fed.R.Civ.P. 6(b), if additional time to serve process was required. This lack of diligence and inadvertence to the running of the 120-day period, even when dismissal under Fed.R.Civ.P. 4(j) could spell the end of Lovelace’s cause of action, cannot be excused if the legislative intent for a strict interpretation of Fed.R.Civ.P. 4(j) is to be followed and the requirement of Fed. R.Civ.P. 4(a) is not to be rendered illusory. See Braxton v. United States, 817 F.2d 238 (3d Cir.1987).

IV.

We recognize that Lovelace may well be harmed by this determination, but we cannot conclude that the district court abused its discretion by refusing to excuse the 55-day delay under the circumstances presented. The order appealed from will therefore be affirmed.

1

. We recognize that should we affirm the determination of the district court, Lovelace may effectively be denied his day in court. His EEOC cause of action, to which his state claims are pendent, is subject to a 90-day time limit. Since the EEOC granted Lovelace a Notice of Right to Sue on August 1, 1985, it is arguable that a new suit upon that claim may be time-barred.

2

. Acme’s contention that the district court’s denial to reconsider its dismissal of Lovelace’s complaint, without prejudice, is not an appeal-able order, is unfounded. A motion to reconsider is a motion to alter or amend under Fed.R.Civ.P. 59(e). Thus, the order of the district court denying the motion to reconsider is clearly subject to review on appeal. See Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 883 (9th Cir. 1983).

3

. Fed.R.Civ.P. 4(c)(3) provides that courts are free to make special appointments to serve process. However, such an appointment can only be made, for the purposes of Fed.R.Civ.P. 4(c) (2)(B)(iii), when such appointment "is required ... in order that service be properly effected in that particular action.” Fed.R.Civ.P. 4(c) (2) (B) (iii). A situation in which such an appointment is required is where violence is anticipated. 128 Cong.Rec. H9848, 9851 n. 19 (daily ed. Dec. 15, 1982), reprinted in 1982 U.S. Code Cong. & Admin.News 4434, 4443-44 n. 19.

The limited purpose to which the Fed.R.Civ.P. 4(c)(2)(B)(iii) method was intended to be used is further evidenced by the fact that there is no provision in the rule for an alternative method to serve process if the specially-appointed process server fails. The use of an alternative method is provided for should service by mail be unsuccessful. See Fed.R.Civ.P. 4(c)(2)(C)(ii). The absence of a similar proviso in Fed.R.Civ.P. 4(c)(2)(B)(iii) is, we believe, justified by the fact that Fed.R.Civ.P. 4(c)(2)(B)(iii) is intended to be an exception to the general rule for service of process and it is to be used only where it is required to effect service of process — i.e., where the other methods provided for in Fed.R.Civ.P. 4 would prove insufficient and inadequate.