Efaw v. Williams , 473 F.3d 1038 ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT EFAW, 
Plaintiff-Appellee,
v.
TERESA WILLIAMS, Detention
Officer or Deputy Sheriff,
Winslow Jail, in her official and
individual capacity,
Defendant-Appellant,
and
GARY H. BUTLER, Navajo County
Sheriff; JACK KERR, Detention No. 04-16920

Officer or Deputy Sheriff in his D.C. No.
official and individual capacity; CV-96-01751-PCT-
MIKE DURAN, Jail Commander, MHM
Navajo County Sheriff’s
Department; FARRELL YONNIE,
Detention Officer or Deputy
Sheriff at Navajo County Sheriff’s
Department in her official and
individual capacity; NAVAJO
COUNTY; NAVAJO COUNTY SHERIFF’S
OFFICE; GAILENE BUTLER, aka Jane
Doe Butler; DEBBIE KERR, aka Jane
Doe Kerr; JANE DOE DURAN; JANE
DOE YONNIE; JANE DOE WILLIAMS,
Defendants.

613
614 EFAW v. WILLIAMS
ROBERT EFAW, 
Plaintiff-Appellee,
v.
TERESA WILLIAMS, Detention
Officer or Deputy Sheriff,
Winslow Jail, in her official and
individual capacity,
Defendant-Appellant,
and
GARY H. BUTLER, Navajo County No. 05-16062
Sheriff; JACK KERR, Detention
D.C. No.

Officer or Deputy Sheriff in his
official and individual capacity; CV-96-01751-PCT-
MIKE DURAN, Jail Commander, MHM
Navajo County Sheriff’s OPINION
Department; FARRELL YONNIE,
Detention Officer or Deputy
Sheriff at Navajo County Sheriff’s
Department in her official and
individual capacity; NAVAJO
COUNTY; NAVAJO COUNTY SHERIFF’S
OFFICE; GAILENE BUTLER, aka Jane
Doe Butler; DEBBIE KERR, aka Jane
Doe Kerr; JANE DOE DURAN; JANE
DOE YONNIE; JANE DOE WILLIAMS,
Defendants.

Appeals from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Argued and Submitted
October 19, 2006—San Francisco, California
EFAW v. WILLIAMS 615
Filed January 16, 2007
Before: Susan P. Graber, William A. Fletcher, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Graber;
Dissent by Judge W. Fletcher
EFAW v. WILLIAMS 617
COUNSEL
Randall H. Warner, Jones, Skelton & Hochuli, PLC, Phoenix,
Arizona, for the defendant-appellant.
Dennis J. Glanzer, Glanzer Law Office, Flagstaff, Arizona,
for the plaintiff-appellee.
OPINION
GRABER, Circuit Judge:
Plaintiff Robert Efaw claims that he was beaten severely by
two guards while imprisoned at a Navajo County jail in Ari-
zona. He filed suit against Defendant Officer Teresa Wil-
liams, one of the two guards involved in the incident, and
various institutional and individual defendants. Plaintiff failed
to serve Defendant with the complaint until seven years after
it was filed.
Defendant moved to be dismissed as a defendant pursuant
to Federal Rule of Civil Procedure 4(m). The district court
denied the motion and granted Plaintiff additional time to
effect service of process. A jury trial followed, resulting in a
judgment for Plaintiff. Defendant appeals. We vacate the
judgment and remand with instructions to dismiss the action
against Williams.
618 EFAW v. WILLIAMS
FACTUAL AND PROCEDURAL BACKGROUND
On August 9, 1995, Plaintiff was in custody at the Navajo
County jail in Winslow, Arizona. According to Plaintiff,
Sheriff’s Deputy Jack Kerr and Defendant entered his cell and
assaulted him. Plaintiff testified at trial that Kerr and Defen-
dant struck him more than 20 times in the face, throat, and
head, and “four-pointed” him by handcuffing his hands and
feet to the bed with his arms splayed above his head. Plaintiff
was hospitalized later that night.
Kerr created an “Offense Report” dated the same day the
incident occurred. The Offense Report asserts that Plaintiff
attacked Kerr and Defendant when they entered his cell and
that Kerr hit Plaintiff and shackled him in order to subdue
him. Kerr, Defendant, and Plaintiff were the only people pres-
ent during the incident.
Plaintiff’s original complaint was filed pro se on July 29,
1996, and was dismissed on technical grounds. He obtained
counsel and filed an amended complaint on October 4, 1996,
naming as defendants Navajo County, Navajo County Sheriff
Gary Butler, Deputy Kerr, Mike Duran, Farrell Yonnie,
Defendant, and each named defendant’s spouse. By January
9, 1997, Plaintiff had served process on all defendants except
Yonnie and Defendant, neither of whom worked for the Nav-
ajo County Sheriff’s Office at the time Plaintiff attempted to
serve them. On January 28, 1997, Plaintiff sought an exten-
sion of time within which to complete service of process. The
district court granted him an additional 180 days. He failed to
complete service on Defendant in the allotted time.
Plaintiff was without counsel between October 7, 1997, and
April 9, 2001. On August 13, 2003, the district court granted
partial summary judgment to the other defendants, leaving
only Defendant and Kerr in the action.
On September 9, 2003, more than seven years after filing
the complaint, Defendant Williams moved to dismiss herself
EFAW v. WILLIAMS 619
as a party under Rule 4(m) because Plaintiff had failed to
complete service of process. The district court denied her
motion and granted Plaintiff 30 days from the time of its
December 19, 2003, order to serve Defendant. Plaintiff finally
completed service, and the case went to trial with Williams as
the only remaining defendant.
At trial, Defendant offered as evidence Kerr’s Offense
Report. The district court refused to admit the report on hear-
say grounds because Defendant had failed to lay the proper
foundation to establish the report as a business record and the
district court questioned the trustworthiness of the report.
Kerr had died by the time of trial, and no party deposed him
before his death.
On August 18, 2004, the district court entered judgment for
Plaintiff. The jury awarded Plaintiff $10,000 in nominal and
compensatory damages and $90,000 in punitive damages.
Defendant filed a timely appeal.
STANDARD OF REVIEW
We review for abuse of discretion a district court’s decision
to extend the period for effecting service of process. Mann v.
Am. Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003).
DISCUSSION
[1] Rule 4(m) provides in part:
If service of the summons and complaint is not
made upon a defendant within 120 days after the fil-
ing of the complaint, the court, upon motion or on its
own initiative after notice to the plaintiff, shall dis-
miss 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
620 EFAW v. WILLIAMS
for the failure, the court shall extend the time for ser-
vice for an appropriate period.
Fed. R. Civ. P. 4(m).
[2] Plaintiff did not serve Defendant within 120 days of fil-
ing his complaint. Rather, Defendant was not served until
more than seven years after Plaintiff filed his amended com-
plaint.
[3] Rule 4(m), as amended in 1993, requires a district court
to grant an extension of time when the plaintiff shows good
cause for the delay. Mann, 324 F.3d at 1090 n.2. Additionally,
the rule permits the district court to grant an extension even
in the absence of good cause. Id. Here, Plaintiff does not
argue that he showed “good cause,” nor did the district court
find that he established good cause.1 Rather, Plaintiff contends
that the district court acted within the scope of its Rule 4(m)
discretionary power when it extended the time to serve Defen-
dant. The question presented, then, is how much discretion
Rule 4(m) bestows on the district court.
[4] 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.” This
court in Mann, 324 F.3d 1090-91, held that Rule 4(m) gave
the district court discretion to extend time of service. “On its
face, Rule 4(m) does not tie the hands of the district court
after the 120-day period has expired. Rather, Rule 4(m)
explicitly permits a district court to grant an extension of time
1
In his December 12, 2003, motion for extension of time for service,
Plaintiff stated: “Plaintiff has attempted in several ways to locate Ms. Wil-
liams without success to this point in time. Some other methods of search-
ing were too costly for Efaw, but there are funds available now for
additional search methods to find Ms. Williams.”
EFAW v. WILLIAMS 621
to serve the complaint after that 120-day period.” Id. at 1090.
However, no court has ruled that the discretion is limitless.
[5] In making extension decisions under Rule 4(m) a dis-
trict court may consider factors “like a statute of limitations
bar, prejudice to the defendant, actual notice of a lawsuit, and
eventual service.” Troxell v. Fedders of N. Am., Inc., 160 F.3d
381, 383 (7th Cir. 1998). Here, the district court provided no
indication that it had considered those factors in reaching its
decision. Its order merely cited Rule 4(m) and ruled: “Pursu-
ant to Rule 4(m), the Court will order Plaintiff to serve Defen-
dant Williams within thirty days from the date this Order is
filed. If Plaintiff fails to serve Defendant Williams within that
time, a subsequent motion to dismiss will be granted.”
[6] The facts of this case weigh strongly against the district
court’s ruling. First, the length of the delay was extraordinary.
Plaintiff offered no reasonable explanation for his seven-year
failure to serve Defendant. There was no evidence that Defen-
dant attempted to evade service, that she left the state, or that
she took any other action that contributed to Plaintiff’s delay.
Plaintiff was represented by counsel for a significant portion
of the seven years, including the period in which he filed his
amended complaint, and he never claimed ignorance of the
service requirements even when he proceeded pro se.
[7] Second, there is no evidence in the record that Defen-
dant knew about the action notwithstanding Plaintiff’s failure
to effect proper service. Nor did the district court find that
Defendant knew that Plaintiff had filed the complaint.
[8] Finally, the delay prejudiced Defendant. In the interven-
ing seven years, the memories of all witnesses faded. Kerr,
the only other eyewitness to the incident, died. Neither party
deposed Kerr before his death, and Defendant was not served
until five years after Kerr died. Defendant had no reason to
depose Kerr during the two years he was available, after
Plaintiff filed the action and before Kerr died.
622 EFAW v. WILLIAMS
[9] Under these circumstances, the district court abused its
discretion in denying Defendant’s motion for dismissal based
on Plaintiff’s failure to comply with Rule 4’s service require-
ments.2
[10] Defendant also challenged the district court’s exclu-
sion at trial of the Kerr report on hearsay grounds. Because
dismissal is proper under Rule 4, we need not reach this issue.
JUDGMENT VACATED; REMANDED with instructions
to dismiss the action against Defendant Williams. Costs on
appeal are awarded to Defendant Williams.
W. FLETCHER, Circuit Judge, dissenting:
I respectfully dissent in this close case. Although seven
years is indeed an extraordinary delay in serving a defendant,
I would find that the district court did not abuse its broad dis-
cretion in granting an extension of time under Rule 4(m).
A jury awarded Robert Efaw $100,000 in damages in a
lawsuit arising out of a series of beatings Efaw suffered over
the course of a day in the Navajo County jail in August 1995.
Although defendant Teresa Williams testified at trial that she
herself did not punch Efaw, she admitted that the officer act-
ing with her, Jack Kerr, did punch him. She further admitted
that she and Kerr “four-pointed” Efaw by handcuffing his
arms and legs to the bed with his arms splayed above his
head, even though the normal position for a four-point
restraint is to put the person’s arms by his side. During the
2
The dissent correctly points out that “Williams has been unable to
point us to a single case in which a court has held that a district court
abused its discretion in granting an extension under Rule 4(m).” Dissent
at 625. On the other hand, we have found no case upholding a delay of
anywhere near this magnitude.
EFAW v. WILLIAMS 623
night following the beatings, a third officer discovered Efaw
still “four-pointed” and released him; later, she radioed for
paramedics and an ambulance after finding Efaw sprawled on
the floor of his cell with blood around his face.
As the majority opinion recounts in greater detail, Efaw
failed to serve Williams for seven years, from 1996 to 2003.
Although Efaw timely served others among the defendants,
Williams was no longer working at the County Sheriff’s
Office when Efaw timely attempted to serve her, and he failed
to serve her during the 180-day extension he was granted in
January 1997. The court permitted Efaw’s counsel to with-
draw in April 1997, and Efaw’s motion for appointment of
counsel was stricken in November 1997. Counsel next
appeared on Efaw’s behalf in April 2001. In September 2003,
Williams moved to dismiss herself as a party for Efaw’s fail-
ure to serve. Now represented by his new counsel, in Decem-
ber 2001 Efaw requested and received his second extension of
the time to serve. He then served Williams within the 30 days
the court granted him.
We review for abuse of discretion a district court’s decision
to grant an extension under Rule 4(m). Mann v. Am. Airlines,
324 F.3d 1088, 1090 (9th Cir. 2003). Under the abuse of dis-
cretion standard, we reverse a trial court’s decision only when
we are “convinced firmly that the reviewed decision lies
beyond the pale of reasonable justification under the circum-
stances.” Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir.
2000).
As we have previously noted, “[t]he 1993 amendments to
General Rule 4(m) gave courts greater leeway to preserve
meritorious lawsuits despite untimely service of process.”
United States v. 2,164 Watches, 366 F.3d 767, 772 (9th Cir.
2004). The amendments give courts “discretion to enlarge the
120-day period ‘even if there is no good cause shown.’ ” Hen-
derson v. United States, 517 U.S. 654, 663 (1996) (quoting
Fed. Rule Civ. P. 4, Advisory Committee Note to 1993
624 EFAW v. WILLIAMS
Amendments, Subdivision (m)). A court may retroactively
grant such an extension after the 120-day period has expired.
Mann, 324 F.3d at 1090.
In weighing whether to grant an extension in the absence
of good cause, the district court may properly take into
account whether the plaintiff could re-file the suit if it were
dismissed. “The district court’s discretion is not diminished
when the statute of limitations would bar re-filing of the suit
if the district court decided to dismiss the case instead of grant
an extension. To the contrary, the advisory committee notes
explicitly contemplate that a district court might use its dis-
cretion to grant an extension in that very situation: ‘Relief
may be justified, for example, if the applicable statute of limi-
tations would bar the re-filed action.’ ” Id. at 1090-91 (quot-
ing Fed. R. Civ. P. 4, Advisory Committee Note to 1993
Amendments, Subdivision (m)); accord De Tie v. Orange
Cty., 152 F.3d 1109, 1111 n.5 (9th Cir. 1998). This consider-
ation should carry greater weight in § 1983 cases, because
“the public policy favoring resolution on the merits is ‘partic-
ularly important in civil rights cases.’ ” Hernandez v. City of
El Monte, 138 F.3d 393, 401 (1998) (quoting Eldridge v.
Block, 832 F.2d 1132, 1137 (9th Cir. 1987)). Here, the statute
of limitations would have prevented Efaw from re-filing his
excessive force claim if the district court had dismissed this
case. See TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir.
1999) (statute of limitations for Arizona § 1983 claims is two
years).
Further, although Williams was prejudiced by delay, and
although seven years is an extraordinary delay, the most sig-
nificant prejudice to Williams’ defense cannot be attributed to
this delay’s extraordinary length. The greatest harm to Wil-
liams’ defense between 1996 and 2003 was the death of Wil-
liams’ co-defendant Kerr. Kerr’s testimony might have
corroborated Williams’ account and convinced the jury to
hold in her favor. We were told at argument that Kerr died in
1998, only two years into the delay. Two years’ delay in serv-
EFAW v. WILLIAMS 625
ing a defendant is not extraordinary. See, e.g., McGuire v.
Turnbo, 137 F.3d 321, 323-24 (5th Cir. 1998) (service timely
where plaintiff served defendant within court’s extended
deadline, nearly two years after filing suit). Thus, the extraor-
dinary length of the delay in this case contributed less to the
prejudice to Williams than it might seem at first blush, and
certainly contributed less than if Kerr had died in the seventh
year (in which case I might have joined the majority).
Williams has been unable to point us to a single case in
which a court has held that a district court abused its discre-
tion in granting an extension under Rule 4(m). I would
decline to do so in this case, despite Efaw’s long delay. Grant-
ing the extension was not “beyond the pale of reasonable jus-
tification under the circumstances,” because Efaw would
otherwise have been barred from litigating the merits of his
civil rights claim. Harman, 211 F.3d at 1174. I would defer
to the judgment of the district court.