De-La-Cruz-Arroyo v. Commissioner of ( 1998 )

USCA1 Opinion

      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]



                 United States Court of Appeals

                     For the First Circuit











No. 97-2378



                    AWILDA DE-LA-CRUZ-ARROYO,



                      Plaintiff, Appellant,



                                v.



                 COMMISSIONER OF SOCIAL SECURITY,



                       Defendant, Appellee.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF PUERTO RICO



        [Hon. Juan M. Perez-Gimenez, U.S. District Judge]







                              Before



                      Boudin, Circuit Judge,

                 Coffin, Senior Circuit Judge,

                   and Lynch, Circuit Judge.







     Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief

for appellant.

     Honorable Guillermo Gil, United States Attorney, Lilliam

Mendoza Toro, Assistant United States Attorney, and Donna McCarthy,

Assistant Regional Counsel, Social Security Administration, on

brief for appellee.











May 27, 1998







            Per Curiam.  Appellant Awilda De-La-Cruz-Arroyo

    appeals from the dismissal of her action for lack of

    prosecution.  Specifically, process never was served on the

    defendant, the Secretary of Health and Human Services.

              The district court did not abuse its discretion in

    ordering dismissal of the case after nine months had passed

    without service and without any other action on appellant's

    part to move the case forward.  See Caribbean Transp. Sys.,

    Inc. v. Autoridad de las Navieras de Puerto Rico, 901 F.2d 196,

    197 (1st Cir. 1990) (affirming the dismissal of plaintiffs'

    case where they failed to serve the amended complaint for seven

    months and did little to move the action along).  The question

    then becomes whether the district court abused its discretion

    in denying appellant's request, made in her Fed. R. Civ. P.

    60(b) motion, for an extension of time in which to serve the

    Secretary.  We think not.

              Under Fed. R. Civ. P. 4(m), an extension of time for

    service of process is permitted upon a showing of "good cause."

    It is appellant's burden to demonstrate the requisite cause.

    See United States v. Ayer, 857 F.2d 881, 884-85 (1st Cir. 1988).

    Here, the error made by appellant's attorney shows

    inadvertence.  However, this is not enough to require the

    district court to grant an extension under Rule 4.  See Powellv. Starwalt, 866 F.2d 964, 965 (7th Cir. 1989) (rejecting

    attorney inadvertence as amounting to "good cause" under Rule

    4(j), the predecessor to Rule 4(m)); Braxton v. United States,

    817 F.2d 238, 239 (3rd Cir. 1987) (same).

              Counsel argues that he nonetheless acted diligently

    by reviewing the case and filing the motion in June 1997,

    asking to be notified when the court decided the case.  Rather

    than exhibiting diligence, however, this motion underscores the

    want of prosecution.  Specifically, we think that any

    reasonable review of the case should have revealed, in addition

    to the lack of a decision, the absence of an answer or other

    responsive pleading from the Secretary.  In turn, this should

    have alerted appellant's attorney to the possibility that the

    Secretary never had been served.

              We find the lack of any explanation, even now, for

    appellant's inactivity from June 18, 1997 until the case was

    dismissed on September 26, 1997 dispositive.  See Resolution

    Trust Corp. v. Starkey, 41 F.3d 1018, 1022 (5th Cir. 1995) (good

    cause for failure to timely serve defendant was lacking where

    plaintiff offered no explanation for not having acted

    diligently in discovering defendant's address).  That appellant

    was not proceeding in bad faith is not controlling.  See id.(lack of a "sinister motive" is not enough to excuse delay in

    failing to serve defendant).  Rather, "the fact that

    [appellant] was careless is sufficient to militate against the

    showing of good faith required for shelter under" Rule 4.   Seeid.

              Affirmed.