Kimberly Collins v. Gwendolyn Thornton

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1995
KIMBERLY D. COLLINS,
Plaintiff - Appellant,
v.
GWENDOLYN THORNTON, Ph.D.,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Henry E. Hudson, Senior District Judge. (3:18-cv-00210-HEH)
Submitted: June 28, 2019 Decided: August 13, 2019
Before MOTZ and RUSHING, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Richard F. Hawkins, III, THE HAWKINS LAW FIRM, PC, Richmond, Virginia, for
Appellant. Mark R. Herring, Attorney General, Cynthia V. Bailey, Deputy Attorney
General, Carrie S. Nee, Senior Assistant Attorney General, Toby J. Heytens, Solicitor
General, Matthew R. McGuire, Principal Deputy Solicitor General, Michelle S. Kallen,
Deputy Solicitor General, Brittany M. Jones, John Marshall Fellow, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia; Ramona L. Taylor,
University Legal Counsel, VIRGINIA STATE UNIVERSITY, Petersburg, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kimberly D. Collins appeals from the district court’s June 27, 2018, order denying
her motion to extend time to serve her 42 U.S.C. § 1983 (2012) complaint on Defendant
and dismissing it without prejudice under Fed. R. Civ. P. 4(m) for untimely service and its
July 27, 2018, order denying her Fed. R. Civ. P. 59(e) motion to alter or amend that
judgment. We affirm.
We review the dismissal of a complaint for failure to timely serve process for abuse
of discretion. Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 708 (4th Cir. 1993)
(applying Rule 4(m)’s predecessor, Fed. R. Civ. P. 4(j)). We also review the district court’s
decision on a motion to alter or amend judgment under Rule 59(e) for abuse of discretion.
Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012).
“A district court abuses its discretion only where it has acted arbitrarily or irrationally, has
failed to consider judicially recognized factors constraining its exercise of discretion, or
when it has relied on erroneous factual or legal premises.” L.J. v. Wilbon, 633 F.3d 297,
304 (4th Cir. 2011) (internal quotation marks, alteration, and ellipsis omitted).
Rule 4(m) requires a plaintiff to serve a defendant within 90 days after her complaint
is filed. Fed. R. Civ. P. 4(m). A plaintiff may escape dismissal for failure to timely serve
process if she demonstrates “good cause” for the delay or if the district court exercises its
discretion to extend the time for service. Id. With respect to the June 27 order, Collins
argues on appeal that the district court abused its discretion in denying her motion to extend
time to complete service for three reasons.
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First, Collins argues that her motion to extend was “governed by” Fed. R. Civ. P.
6(b)(1)(A) because it was filed before the expiration of the 90-day service deadline set forth
by Rule 4(m) and that the district court reversibly erred in failing to apply what she
characterizes as the “liberal, non-rigorous, light, and lenient standard applied to
pre-deadline motions for extension filed under Rule 6(b)(1)(A).” As Collins
acknowledges, however, and as the record reflects, her motion to extend explicitly sought
an extension under Rule 4 and explicitly asserted that “good cause” under this Rule had
been established. The motion did not invoke Rule 6. “Absent exceptional
circumstances, . . . we do not consider issues raised for the first time on appeal. Rather, we
consider such issues on appeal only when the failure to do so would result in a miscarriage
of justice.” Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 242 (4th Cir. 2009)
(internal quotation marks and citation omitted). Collins has not argued that exceptional
circumstances are present or that a miscarriage of justice would result if this Court failed
to consider her arguments, and we find after review of the record no such circumstances
warranting departure from the general rule. We therefore decline to consider these
arguments on appeal.
Next, Collins argues that the district court’s denial of her motion for extension of
time was an abuse of discretion because the court did not “discuss or evaluate” whether
she or her counsel had acted in bad faith or whether any prejudice to the defendant existed,
reached its conclusion that she had not demonstrated good cause or excusable neglect
without providing “any” legal analysis of applicable factors, and erred in concluding she
had not established good cause warranting the extension. Although other provisions of the
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Federal Rules of Civil Procedure expressly instruct a district court to consider whether a
party has acted in bad faith or whether granting a particular request will cause prejudice,
Rule 4(m) does not so instruct. Rather, the Rule directs that, if the plaintiff shows “good
cause” for her failure to serve the complaint in a timely manner, then the district court must
“extend the time for service for an appropriate period.” Fed. R. Civ. P. 4(m). What
constitutes “good cause” for purposes of Rule 4(m) “necessarily is determined on a case-
by-case basis within the discretion of the district court.” Scott v. Md. State Dep’t of Labor,
673 F. App’x 299, 306 (4th Cir. 2016) (No. 15-1617); Nafziger v. McDermott Int’l, Inc.,
467 F.3d 514, 521 (6th Cir. 2006) (“Establishing good cause is the responsibility of the
party opposing the motion to dismiss . . . and necessitates a demonstration of why service
was not made within the time constraints.” (internal quotation marks omitted)).
Here, the district court concluded that Collins had failed to demonstrate good cause
based on the representation of Collins’s counsel in the motion to extend concerning his
own course of conduct regarding his compliance with the 90-day service deadline. Collins
has not shown that the district court abused its discretion in reaching this conclusion.
Counsel’s representations in the motion—the only pleading before the court
requesting extension—established that he did not even attempt to complete service or
obtain a waiver of service until there were 6 days left in the 90-day service period. Counsel
also did not seek an extension of time to effect service until the last day of the 90-day
service period. Entirely absent from the motion, however, is any explanation as to why
counsel waited approximately two months after issuance of the summons to attempt service
and further failed to complete service or obtain a waiver of service within the 90-day
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period. The district court properly reached its conclusion that no good cause was present
by considering and analyzing appropriate factors before it bearing on whether Collins’s
counsel was diligent in his effort to effect service.
Third, Collins appears to contend that the district court erred in its legal analysis
underpinning its good cause determination by not applying a list of eight factors identified
in a district court decision, Robinson v. G D C, Inc., 193 F. Supp. 3d 577 (E.D. Va. 2016),
a list of six factors recited in this court’s unpublished opinion Scott v. Md. State Dep’t of
Labor, 673 F. App’x 299 (4th Cir. 2016) (No. 15-1617), or both. These cases, we
conclude, do not help Collins. Neither decision sets out factors district courts in this Circuit
must consider in assessing whether good cause warranting an extension of time for service
is present under Rule 4(m). In focusing on the information Collins’s counsel presented in
the motion to extend regarding his efforts at service, the district court did not abuse its
discretion as Collins contends. Further, as there is no evidence the court relied on an
erroneous factual or legal determination in denying the motion to extend, an abuse of
discretion in this regard has not been established.
Turning to the district court’s July 27 order denying Collins’s Rule 59(e) motion to
alter or amend judgment, such a motion may only be granted “in three situations: (1) to
accommodate an intervening change in controlling law; (2) to account for new evidence
not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.”
Mayfield, 674 F.3d at 378 (internal quotation marks omitted). Collins argues that the
district court abused its discretion in denying the motion in three respects: first, because
no extension of time for service actually was necessary because timely and proper service
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on Defendant had been made; second, because the court’s determination that the record did
not establish good cause for an extension was erroneous; and third, because the court gave
insufficient weight to the consideration that dismissal of her complaint without prejudice
was, in effect, a dismissal with prejudice because she filed her complaint on the last day of
the applicable statute of limitations.
We find no abuse of discretion in the district court’s denial of Collins’s Rule 59(e)
motion. As the district court held, Collins’s legal theory that no extension of time for
service was necessary failed because she did not show that Defendant’s assistant was
authorized by appointment or by law to accept service on Defendant’s behalf. See Fed. R.
Civ. P. 4(e)(2)(C).
In addition, Collins’s Rule 59(e) argument on good cause merely reiterated facts
presented in her motion to extend and relied on both legal arguments and factual
circumstances she could have raised in that motion but did not. The same is true with
respect to Collins’s third contention. Collins could have, but failed to, assert prior to the
June 27 order that dismissal of her complaint would have been a harsh and unwarranted
outcome in view of the likely bar to future litigation she faced based on the statute of
limitations. Because Rule 59(e) motions may not be used “to raise arguments or present
evidence that could have been raised prior to the entry of judgment,” Exxon Shipping Co. v.
Baker, 554 U.S. 471, 485 n.5 (2008) (internal quotation marks omitted); Pac. Ins. Co. v.
Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (“Rule 59(e) motions may not
be used . . . to raise arguments which could have been raised prior to the issuance of the
judgment, nor may they be used to argue a case under a novel legal theory that the party
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had the ability to address in the first instance. . . . The Rule 59(e) motion [also] may not
be used to relitigate old matters.” (internal quotation marks omitted)), the denial of
Collins’s motion was not an abuse of discretion. *
Accordingly, we affirm the district court’s orders. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
*
We further conclude that Collins’s motion did not plausibly suggest or establish
the presence of a manifest injustice or a clear error of law in the district court’s June 27
denial and dismissal order.
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