United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE
complaint was filed November 3, 2016, with a Spanish
foundation named as the only defendant. (Doc. 1). The file
does not reflect that the plaintiff has perfected service.
The plaintiff's failure to perfect service within 90 days
after filing the complaint exposes her action to dismissal
without prejudice under Rule 4(m). Accordingly, on March 7,
2017, the Court ordered the plaintiff to show cause why the
action should not be dismissed pursuant to Rule 4(m). (Doc.
plaintiff responds that she immediately attempted service on
the foreign defendant's local agent but learned on
November 9, 2016 that the purported agent was not actually
the defendant's agent. At about that time,
plaintiff's counsel sustained severe lacerations to his
knees, and a month later he severely sprained his ankle when
his foot slipped off a step. Counsel received ten hyperbaric
treatments, visited a wound clinic multiple times, and was
seen by a number of physicians, although the time frame
during which these activities occurred is not stated. Counsel
was admitted to hospital from January 2 through 9, 2017,
during which time a wound became infected, resulting in
continuing wound care. At some unidentified point,
counsel's injuries rendered him unable to walk without a
walker. He began physical therapy on January 25, 2017 and
graduated from a walker to a cane on February 24, 2017. Three
days later, counsel mailed a request to waive service to the
defendant in Seville, Spain. In the likely event the
defendant declines to waive service,  the plaintiff intends to
proceed under the Hague Convention.
the plaintiff shows good cause for the failure [to serve the
defendant], the court must extend the time for service for an
appropriate period.” Fed.R.Civ.P. 4(m). As the Court
warned the plaintiff in its show cause order, “[g]ood
cause exists only when some outside factor such as reliance
on faulty advice, rather than inadvertence or negligence,
prevented service.” Lepone-Dempsey v. Carroll
County Commissioners, 476 F.3d 1277, 1281
(11th Cir. 2007) (internal quotes omitted).
plaintiff does not address good cause expressly but
apparently relies on counsel's injuries to establish it.
“Courts that have addressed untimely service due to
illness have noted: Courts are disinclined to find good cause
on the basis of mere assertions that counsel found it
inconvenient or difficult to effect service in a timely
manner.” Ferguson v. Management Training
Corp., 2017 WL 107969 at *2 (D. Ore. 2017) (internal
quotes omitted) (citing cases); accord Gibbs v. Imagimed,
LLC, 2013 WL 2372265 at *2 (S.D.N.Y. 2013) (citing
cases). Clearly counsel's injuries made the practice of
law more difficult during portions of the last four months,
the plaintiff has failed to show that counsel was
incapacitated throughout this period by injuries “so
serious as to prevent so unstrenuous an effort as service of
a complaint.” Id. (internal quotes omitted).
Nor has the plaintiff explained why his counsel's partner
- who has entered a notice of appearance - could not have
taken any steps to effect service. The Court is unable to
conclude from the plaintiff's showing that his
counsel's physical condition constitutes good cause for
the failure to effect service.
plaintiff points out that Rule 4(m) does not apply when
service is attempted under the Hague Convention. (Doc. 6 at
3). This is correct, see Fed. R. Civ. P. 4(f)(1),
4(m), but the plaintiff has not attempted such service. When
a plaintiff does not attempt service under the Hague
Convention before the 90-day (formerly 120-day) period of
Rule 4(m) expires, Rule 4(m)'s exclusion for such service
is not in play and cannot provide good cause. Sikhs for
Justice v. Nath, 850 F.Supp.2d 435, 441 (S.D.N.Y. 2012);
Norrenbrock Co. v. Ternium Mexico, 2014 WL 556733 at
*2 (W.D. Ky. 2014).
good cause, the Court may, but need not, allow additional
time. Horenkamp v. Van Winkle & Co., 402 F.3d 1129,
1132 (11th Cir. 2005); accord
Lepone-Dempsey, 476 F.3d at 1281-82. In determining
whether to exercise its discretion to extend the time for
service despite the lack of good cause, a court considers
whether the defendant is evading service, whether it is
concealing defects in service, and whether the statute of
limitations will bar the re-filing of the lawsuit should it
be dismissed. Horenkamp, 402 F.3d at 1132. The
foregoing is “not an exhaustive list” of factors
a court may consider. Lepone-Dempsey, 476 F.3d at
1182. This explanation appears essentially verbatim
in the Court's show cause order. (Doc. 5 at 1).
plaintiff, however, has not addressed these factors or
identified any others. It is plain the defendant is not
evading service or concealing defects in service, since the
plaintiff has not attempted service. As for the limitations
period, the only cause of action the complaint alleges is
negligence; since jurisdiction is based exclusively on
diversity, and since the incident occurred on the Mobile
River, the two-year limitations period found in Ala. Code
§ 6-2-38(l) controls. E.g., Booker v.
United American Insurance Co., 700 So.2d 1333, 1339
(Ala. 1997). The incident is alleged to have occurred in
November 2015, so it is clear the plaintiff is able to
re-file her action before the limitations period expires.
reasons set forth above, this action is dismissed without
prejudice pursuant to Rule 4(m).
 A defendant is under no obligation to
waive service, although it can be tagged with the costs of
service if, without good cause, it declines to do so.
Fed.R.Civ.P. 4(d)(2). The Court has been given no reason to
expect the Spanish defendant to concede service so easily,
especially given that the notice and request, contrary to
Rule 4(d)(1)(A)(ii), is not addressed to an officer or
appropriate agent of the defendant. (Doc. 6-2 at 1).
 Counsel was hospitalized for only one
week of this period. He received substantial medical
treatment outside the hospital, but from the vague
descriptions provided it is impossible to conclude he was
unable to practice law as a result. His temporary need for a
walker (apparently arising only in January 2017) would
predictably slow his movement, but many lawyers work with
physical infirmities. It is notable that the plaintiff does
not assert his counsel ...