The opinion of the court was delivered by: Townes, United States District Judge
Plaintiff brings this action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, to recover damages for injuries he allegedly sustained in a July 2004 automobile accident involving defendants. On February 10, 2006, this Court issued an Order directing plaintiff to show cause why this action should not be dismissed pursuant to Fed. R. Civ. P. 4(m) ("Rule 4(m)") for failure to serve defendants within 120 days after filing the complaint. In response to this Order, plaintiff's counsel has submitted an affidavit conceding that service was not effected within 120 days because neither the United States Attorney nor the Attorney General was ever served. Affidavit in Opposition to Dismissal of Action Pursuant to Fed. R. Civ. P. 4(m) ("Aff.") at ¶ 10. However, plaintiff's counsel argues (1) that there was "good cause" for the failure to serve, (2) that, even in the absence of "good cause," dismissal under Rule 4(m) is not mandatory, and (3) that this Court should exercise its discretion to extend the time for service. In support of the third argument, plaintiff's counsel argues that the applicable statute of limitations, 28 U.S.C. § 2401(b), would prevent plaintiff from refiling this action, and that defendants have actual notice of his lawsuit because he served a copy of the summons and complaint on the General Counsel to the Secret Service.
Plaintiff Has Not Shown "Good Cause"
Rule 4(m) provides that if a plaintiff shows "good cause" for the failure to serve the summons and complaint upon a defendant within 120 days after the filing of the complaint, the Court "shall extend the time for service for an appropriate period." However, "[a] party seeking a good cause extension bears a heavy burden of proof." Alvarado v. American Freightways, Inc., No. 04 Civ. 9536 (JCF), 2005 WL 1467893, at *5 (S.D.N.Y. June 21, 2005) (citing Geller v. Newell, 602 F.Supp. 501, 502 (S.D.N.Y. 1984)). "Good cause is 'generally found only in exceptional circumstances where the plaintiff's failure to serve process in a timely manner was the result of circumstances beyond its control.'" Eastern Refractories Co., Inc. v. Forty Eight Insulations, Inc., 187 F.R.D. 503, 505 (S.D.N.Y. 1999) (quoting Nat'l Union Fire Ins. Co. v. Sun, No. 93 Civ. 7170 (LAP), 1994 WL 463009, at *3 (S.D.N.Y. Aug. 25, 1994)). Therefore, "[a]n attorney's inadvertence, neglect, mistake or misplaced reliance does not constitute good cause." Id. (quoting Howard v. Klynveld Peat Marwick Goerdeler, 977 F.Supp. 654, 658 (S.D.N.Y. 1997), aff'd, 173 F.3d 844 (2d Cir. 1999)).
In arguing that there was "good cause" for the failure to serve defendants in this case, plaintiff's counsel alleges "misplaced reliance." Specifically, plaintiff's counsel claims that his office, having little experience with federal litigation, "detrimentally relied upon the office of Elite Process Servers to properly effectuate service." Aff. at ¶ 12. However, as plaintiff's counsel tacitly acknowledges, it is "trial counsel's responsibility to monitor the activity of the process server and to take reasonable steps to assure that a defendant is timely served." McKibben v. Credit Lyonnais, No. 98 Civ. 3358 (LAP), 1999 WL 604883, at *4 (S.D.N.Y. Aug. 10, 1999) (quoting Cox v. Sandia Corp., 941 F.2d 1124, 1125 (10th Cir. 1991)). Accordingly, plaintiff has not established good cause for the failure to timely serve defendants.
Dismissal is not Mandatory
There appears to be a conflict of authority in this Circuit as to whether Rule 4(m) mandates dismissal without prejudice where a plaintiff has failed to serve a defendant within 120 days of filing the complaint and cannot show "good cause" for that failure. According to some district courts in this Circuit, "there is virtual unanimity that dismissal is mandatory if a defendant is not served within 120 days, unless the plaintiff can show good cause for delay." Howard, 977 F.Supp. at 658 (quoting Nat'l Union Fire Ins, 1994 WL 463009, at *2); see also Virgona v. Tufekian Import-Export Ventures, Inc., No. 03 Civ. 10237 (KNF), 2005 WL 324364, at *1 (S.D.N.Y. Feb. 9, 2005) (quoting McKibben, 1999 WL 604883, at *2). However, several well-respected jurists in this Circuit have expressly held to the contrary. See, e.g., Carroll v. Certified Moving & Storage Co., LLC, No. 04-CV-4446 (ARR), 2005 WL 1711184 , at *2 (E.D.N.Y. July 19, 2005) ("dismissal is not mandatory in the absence of good cause"); Alvarado, 2005 WL 1467893, at *5 (contention that dismissal is mandatory in the absence of good cause is incorrect); ATSI Communications, Inc. v, Shaar Fund, Ltd., 222 F.R.D. 79, 80 (S.D.N.Y. 2004) ("district courts in appropriate circumstances may grant relief under [Rule 4(m)] notwithstanding the lack of good cause").
The latter view is correct. Although proponents of the former position may be right in claiming that their view is held by a majority of district courts in this Circuit, their position is based on cases decided before the 1993 amendments to the Federal Rules of Civil Procedure. Prior to 1993, the 120-day rule was contained in Rule 4(j), which stated:
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.
Faced with this unequivocal language, the Second Circuit repeatedly held that "[d]ismissal of an action is mandatory under Rule 4(j) when the 120 day limit is violated unless 'good cause' can be shown." Zankel v. United States, 921 F.2d 432, 436 (2d Cir. 1990) (quoting Yosef v. Passamaquoddy Tribe, 876 F.2d 283, 287 (2d Cir. 1989), cert. denied, 494 U.S. 1028 (1990)); see also Mentor Ins. Co. (U.K.) Ltd. v. Brannkasse, 996 F.2d 506, 512 (2d Cir. 1993); Frasca v. United States, 921 F.2d 450, 453 (2d Cir. 1990). After all, as the Frasca Court noted, "Rule 4(j) . . . expressly provide[d] an exception only on plaintiff's showing of good cause." Id., 921 F.2d at 453 (emphasis added).
However, the Federal Rules of Civil Procedure were amended in 1993 by, inter alia, adopting a new Rule 4(m) and deleting the above-quoted language from Rule 4(j).*fn1 The Advisory Committee Notes to Rule 4(m) state:
The new subdivision explicitly provides that the court shall allow additional time if there is good cause for the plaintiff's failure to effect service in the prescribed 120 days, and authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown.
28 U.S.C.App. 654 (emphasis added). Quoting these Advisory Committee Notes, the Supreme Court held that the 1993 amendments accorded district courts "discretion to enlarge the 120-day period 'even if there is no good cause shown.'" Henderson v. United States, 517 U.S. 654, 662 (1996). In light of Henderson, the view that dismissal under Rule 4(m) is mandatory unless a plaintiff can ...