Edward Gelin v. Kyle Shuman, individually

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1498
EDWARD GELIN; DEBORAH GELIN, as personal representatives of the Estate
of Ashleigh Gelin, and for themselves,
Plaintiffs - Appellants,
v.
KYLE SHUMAN, individually and as an agent/employee of Baltimore County,
Maryland; JENNIFER SEVIER, individually and as an agent/employee of Baltimore
County, Maryland; ROSELOR SAINT FLEUR, individually and as an
agent/employee of Baltimore County, Maryland; DIANE BAHR, individually and
as an agent/employee of Baltimore County, Maryland; VICTORIA TITUS,
individually and as an agent/employee of Baltimore County, Maryland,
Defendants - Appellees
and
JAY R. FISHER, Sheriff of Baltimore County, individually and in his representative
capacity; JOHN DOE 1-10; CORRECT CARE SOLUTIONS, LLC; BALTIMORE
COUNTY, MARYLAND; JOHN AND JANE DOES 1-8; NICHOLAS
QUISGUARD, individually and in his official capacity; MYESHA WHITE,
individually and in her official capacity; JOSEPH LUX, individually and in his
official capacity; GREGORY LIGHTNER, individually and in his official capacity;
CARL LUCKETT, individually and in his official capacity; MICHELLE
RAWLINS, individually and in her official capacity; MICHAEL SALISBURY, II,
individually and in his official capacity; DEBORAH J. RICHARDSON, Director of
Baltimore County Detention Center, individually and as an agent/employee of
Baltimore County, Maryland,
Defendants.

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Appeal from the United States District Court for the District of Maryland, at Baltimore.
George L. Russell, III, District Judge; Albert David Copperthite, Magistrate Judge. (1:16-
cv-03694-ADC)
Argued: January 27, 2022 Decided: May 24, 2022
Before NIEMEYER, DIAZ, and QUATTLEBAUM, Circuit Judges.
Affirmed in part, vacated in part, and remanded with instructions by published opinion.
Judge Niemeyer wrote the opinion, in which Judge Diaz and Judge Quattlebaum joined.
ARGUED: Lee B. Rauch, FREEMAN RAUCH, LLC, Towson, Maryland, for Appellants.
Lauren Elizabeth Marini, ECCLESTON & WOLF, P.C., Hanover, Maryland, for
Appellees. ON BRIEF: Steven R. Freeman, FREEMAN RAUCH, LLC, Towson,
Maryland, for Appellants. Eric M. Rigatuso, ECCLESTON & WOLF, P.C., Hanover,
Maryland, for Appellees.

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NIEMEYER, Circuit Judge:
The plaintiffs in this civil action served process on several of the defendants roughly
a year after filing their complaint, in violation of Federal Rule of Civil Procedure 4(m)’s
90-day time requirement for service. The district court found insufficient the plaintiffs’
efforts to establish “good cause” for the delay, and because the court understood that a
showing of good cause was a condition for any extension, it dismissed the plaintiffs’ claims
against these defendants.
On review, we conclude that the record amply supports the district court’s ruling
that the plaintiffs failed to show good cause for their failure to serve these defendants within
the time period provided by Rule 4(m). Nonetheless, we vacate the district court’s order
of dismissal because we conclude that Rule 4(m) confers discretion on district courts to
extend the time period for service even when good cause has not been shown. The case is
accordingly remanded for further proceedings consistent with this opinion.
I
Ashleigh Gelin committed suicide on November 14, 2013, while incarcerated at the
Baltimore County Detention Center. Nearly three years later, her parents, Deborah and
Edward Gelin, commenced this wrongful death action on behalf of themselves and
Ashleigh’s estate against 14 named defendants, including 5 health care providers who
worked at the Detention Center at the time of Ashleigh’s death — Kyle Shuman, Roselor
Saint Fleur, Victoria Titus, Jennifer Sevier, and Diane Bahr — as well as numerous “John
and Jane Does.”

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The Gelins filed their complaint on November 11, 2016, and the district court clerk
issued summonses to them on November 15, 2016, for service on the defendants. Under
Federal Rule of Civil Procedure 4(m), the Gelins were required to serve the defendants
within 90 days after they filed their complaint — i.e., by February 9, 2017. To effect
service, the Gelins hired EGA Process Serving, which, on December 1, 2016, attempted to
serve Titus, Sevier, and Bahr at the Detention Center, as directed by the Gelins. EGA
Process Serving was informed, however, that those three health care providers no longer
worked there, and it was unable to obtain additional contact information for them from the
Detention Center. A few days later, EGA Process Serving ran a search for the three
defendants but was unable to obtain addresses for them.
On December 4 and again on December 8, 2016, EGA Process Serving returned to
the Detention Center and hand-delivered the complaint and summonses for Saint Fleur and
Shuman, respectively, to a woman identified as “the Administrator” of the Detention
Center. While it believed that it had effectively served those defendants at that time, it
later learned that the Administrator was not authorized to accept service for either Shuman
or Saint Fleur.
After they had filed their complaint, the Gelins learned that the five health care
provider defendants working at the Detention Center on the date of Ashleigh’s death were
not Baltimore County employees but were employed by Correct Care Solutions, LLC.
Accordingly, they filed an amended complaint on February 8, 2017, that added Correct
Care as a defendant, and Correct Care was thereafter served with the amended complaint
and a summons.

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In September 2017, the district court granted Correct Care’s motion to dismiss and
thereafter scheduled a telephone conference with the remaining parties for September 20,
2017, to discuss the case’s status. Prior to the telephone conference, the Gelins learned
during communications with Correct Care’s counsel that Shuman and Saint Fleur were
maintaining that they had not been served and therefore were not parties to the proceeding.
Thus, at the September 20 telephone conference, the Gelins’ counsel explained their
service problems to the court. No attorney, however, participated in the conference on
behalf of the five health care provider defendants.
The next day, the district court issued an order “memorializ[ing] the agreements
reached during the call.” Specifically, it directed the Gelins to “file a consent motion within
fifteen days . . . requesting a thirty-day extension of time to serve” Shuman, Saint Fleur,
Titus, Sevier, and Bahr “and seeking a reissuance of summonses for those Defendants.”
As directed, the Gelins filed what they captioned as a “consent motion” on October
6, 2017, for an extension of time to serve those five defendants. The Gelins noted in the
motion that they had “experienced difficulty” in serving Titus, Sevier, and Bahr and that
“[d]espite efforts to locate these Defendants, they remain unserved.” As for Shuman and
Saint Fleur, the Gelins maintained that those two defendants had been served properly in
December 2016 when their process server delivered copies of the complaint and a
summons for each of them to the Administrator of the Detention Center. Nonetheless, the
Gelins also requested a 30-day extension to serve those two defendants as well. The court
granted the motion on October 10, 2017, ordering the clerk to reissue summonses for the
five health care providers and further ordering that “the time to serve [those] [d]efendants

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. . . be extended for 30 days from the issue date [of] the summonses.” The Gelins prepared
the new summonses, and the district court clerk reissued them on October 25, 2017.
Thereafter, EGA Process Serving was able to serve Shuman and Titus on October 28, 2017;
Bahr on November 6; and Saint Fleur on November 20. It was unable, however, to serve
Sevier.
In November 2017 — a year after the complaint had been filed — the same attorney
who had served as counsel for Correct Care entered an appearance for the five health care
providers and, on their behalf, filed a motion to dismiss the complaint for insufficient
service of process, pursuant to Federal Rule of Civil Procedure 12(b)(5). These defendants
requested that the court reconsider its earlier order granting the extensions of time to serve
process inasmuch as they were not parties to the action at the time. They also disputed the
Gelins’ claim that Shuman and Saint Fleur had been timely served in December 2016 by
service on the Administrator of the Detention Center, as the Administrator had not been
authorized to accept service on their behalf. Finally, they argued that the Gelins were
“unable to demonstrate good cause for their failure to [effect service] within the time
required by Fed. R. Civ. Proc. 4(m).”
In response, the Gelins argued that they had established good cause entitling them
to an extension of time under Rule 4(m), which provides that “if the plaintiff shows good
cause for the failure, the court must extend the time for service for an appropriate period.”
With respect to Shuman and Saint Fleur, they emphasized that they had believed that both
individuals were properly served with service on the Administrator and that the claimed
defect was not brought to their attention until shortly before the September 2017 telephone

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conference with the court. As for the three other health care providers, the Gelins
maintained that while they “were unable to serve these defendants during the Rule 4(m)
period because they were unable to find a good address for [them],” they had nonetheless
“acted diligently in their efforts to serve these individual[s],” such that “good cause
exist[ed] and this Court’s Order granting” them extra time “was proper.”
The district court granted the five health care providers’ motion to dismiss by order
dated August 1, 2018. The court noted that the Gelins did not serve these defendants within
the 90-day period required by Rule 4(m) and held that they had not established good cause
for their failure to do so. The court explained that the good-cause standard “[g]enerally . . .
requires plaintiffs to show that they exercised ‘reasonable and diligent efforts to effect
service.’” It explained that the Gelins’ “mistaken belief” that they had effectively served
Shuman and Saint Fleur was “insufficient to demonstrate good cause,” as they were the
ones responsible for “overlooking Rule 4(e)’s requirements for serving individuals.” The
court also concluded that the Gelins’ difficulty in obtaining addresses for the other three
defendants was insufficient because they had only made a single attempt during the Rule
4(m) time period to find the defendants’ addresses. After concluding that the Gelins had
not demonstrated good cause, the court observed that “[m]ore recent opinions issued by”
the Fourth Circuit and the District of Maryland had “concluded that courts do not have
discretion to extend the Rule 4(m) deadline absent [a showing of] good cause.”
Accordingly, it concluded that it was necessary to “vacate its October 10, 2017 Order
extending the Rule 4(m) deadline” and dismiss the complaint without prejudice as to the
five health care providers.

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While the case proceeded thereafter with respect to the remaining defendants, the
Gelins filed a motion in March 2019 under Federal Rule of Civil Procedure 60(b) with
respect to the court’s dismissal of their claims against Shuman, maintaining that that
dismissal was a “manifest injustice under Rule 60(b)(6)” because they could not refile a
complaint against him given that the statute of limitations had run on their claims. The
district court denied the motion.
Pursuant to Federal Rule of Civil Procedure 54(b), the Gelins filed a motion to
certify the orders dismissing their claims against the five health care providers as final
judgments, and the court granted that motion on April 6, 2021. The issue therefore
presented focuses solely on the court’s dismissal of the Gelins’ claims against the five
health care providers for insufficient service of process.
II
In relevant part, Federal Rule of Civil Procedure 4(m) provides:
If a defendant is not served within 90 days after the complaint is filed, the
court — on motion or on its own after notice to the plaintiff — must dismiss
the action without prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m).
In this case, the district court, applying Fourth Circuit and district court precedents,
read Rule 4(m) to require that a plaintiff show good cause to obtain an extension for serving
a defendant. It noted that under those precedents, “courts do not have discretion to extend
the Rule 4(m) deadline absent good cause.” After considering the Gelins’ explanation for

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delaying service of process for more than a year as to the health care providers, the court
concluded that the explanation was insufficient to show good cause and dismissed their
claims against those defendants.
The Gelins contend (1) that the court erred in finding their showing of good cause
to be insufficient; and (2) that, in any event, the court erred in failing to recognize that it
had discretion to grant the extension even absent a good-cause showing. We consider each
argument in turn.
A
In arguing that they established good cause, the Gelins maintain that they reasonably
believed that in serving the Administrator of the Detention Center, they effectively served
Shuman and Saint Fleur. And with respect to the remaining three health care providers,
they point to the fact that their process server ran an unsuccessful search for the health care
providers’ addresses and that, before filing the complaint, they also had made a Maryland
Public Information Act request for documents relating to staffing at the Detention Center
that failed to provide them with useful information. Additionally, the Gelins note that
because their claims would now be barred by the applicable statute of limitations if they
had to commence a new action, they would be fatally prejudiced by dismissal, while the
defendants would “face no legally recognized prejudice from an extension.”
“Good cause” requires a “showing of diligence on the part of the plaintiffs.”
Attkisson v. Holder, 925 F.3d 606, 627 (4th Cir. 2019). Consistent with that foundational
principle, good cause is commonly found to “exist[] when the failure of service is due to

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external factors, such as the defendant’s intentional evasion of service,” but “significant
periods of inactivity” and a “fail[ure] to seek extension of time before [the] deadline [has]
lapsed” tend to undercut any claim of good cause. Id. At bottom, “[w]hile ‘good cause’ is
a flexible standard, diligence provides a touchstone for an appellate court” in its review.
Id.; see also 4B Charles Alan Wright, Arthur R. Miller & Adam N. Steinman, Federal
Practice and Procedure § 1137 (4th ed. 2015) (explaining that in evaluating good cause
under Rule 4(m), “courts have rejected excuses based on . . . ignorance of the rule, the
absence of prejudice to the defendant, . . . inadvertence of counsel, or the expenditure of
efforts that fall short of real diligence by the serving party”).
In this case, the Gelins’ efforts to serve Titus, Bahr, and Sevier amounted to a single
search for addresses by the process server after the process server discovered that those
defendants were no longer working at the Detention Center; they did nothing further within
the mandatory 90-day service period. While they note that prior to filing their complaint
they had submitted a request for documents pursuant to the Maryland Public Information
Act, they failed to explain why such a request would be expected to provide contact
information for Detention Center personnel. Moreover, they waited 10 months after their
failed attempt at service — until October 6, 2017 — before even seeking an extension of
time. With respect to Shuman and Saint Fleur, the Gelins maintain simply that they
believed that they had served those defendants by serving the Administrator of the
Detention Center, where Shuman and Saint Fleur worked. But they provide no basis to
justify why they believed that service on the Administrator would constitute effective
service on Shuman and Saint Fleur. Rule 4(e) provides that individuals may be served by

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(1) “following state law,” (2) “delivering a copy of the summons and of the complaint to
the individual personally,” (3) “leaving a copy of each at the individual’s dwelling or usual
place of abode with someone of suitable age and discretion who resides there,” or
(4) “delivering a copy of each to an agent authorized by appointment or by law to receive
service of process.” Fed. R. Civ. P. 4(e). While the Gelins apparently relied on option (4),
they made no showing that the Administrator of the Detention Center was “authorized by
appointment or by law to receive service” on Shuman’s or Saint Fleur’s behalf. Moreover,
they had learned before the 90-day service period had elapsed that Shuman and Saint Fleur
were employees of Correct Care, not Baltimore County. In short, their mistaken belief that
the service on the Administrator had been adequate was simply unreasonable.
In view of these circumstances, we see no ground upon which to disturb the district
court’s conclusion that the Gelins failed to establish “good cause” within the meaning of
Rule 4(m). We accordingly affirm the district court’s holding that the Gelins did not
demonstrate good cause for their failure to serve the five health care provider defendants
within the 90-day service period provided by Rule 4(m).
B
The Gelins seek to marginalize the effect of the good-cause ruling by arguing that
Rule 4(m) gives district courts discretion to grant an extension even without a showing of
good cause. We agree.
In its first sentence, Rule 4(m) provides, “If a defendant is not served within 90 days
after the complaint is filed, the court . . . must” do one of two things — “[1] dismiss the

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action without prejudice against that defendant or [2] order that service be made within a
specified time.” Fed. R. Civ. P. 4(m) (emphasis added). These two options are authorized
in the disjunctive without reference to whether the plaintiff has demonstrated good cause
for the failure to serve the defendant. It thus follows from the text that, even without a
showing of good cause, the district court may “order that service be made within a specified
time” rather than dismissing the action and that the choice between the two is left to the
district court’s discretion. Id. Only in its second sentence does Rule 4(m) mention good
cause, providing that “if the plaintiff shows good cause for the failure” to serve the
defendant within 90 days, then “the court must extend the time for service for an
appropriate period.” Id. (emphasis added). Thus, under Rule 4(m), while a district court
must extend the time for service when a plaintiff shows good cause, such a showing is not
necessary for the court to grant an extension in its discretion. See id. advisory committee’s
note to 1993 amendment (stating that Rule 4(m) “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 [time], and authorizes the court to relieve a plaintiff of the consequences of an
application of [the] subdivision even if there is no good cause shown” (emphasis added)).
In requiring a showing of good cause as a condition for exercising discretion, the
district court recognized that “[t]here is a split in authority regarding whether Rule 4(m)
gives courts discretion to extend deadlines for service without a showing of good cause,”
and it followed those decisions that had “concluded that courts do not have discretion to
extend the Rule 4(m) deadline absent good cause.” The “split in authority” identified by
the district court has its roots in our prior decision in Mendez v. Elliot, 45 F.3d 75 (4th Cir.

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1995), where, relying on cases decided before the Rule’s amendment in December 1993,
we stated that “Rule 4(m) requires that if the complaint is not served within [the time
allowed] after it is filed, the complaint must be dismissed absent a showing of good cause.”
Id. at 78; see also id. at 80 (“Rule 4(m) requires that good cause be shown for obtaining an
extension”). A year after our decision in Mendez, however, the Supreme Court recognized
in Henderson v. United States, 517 U.S. 654 (1996), that one effect of the “1993
amendments to the Rules” was that “courts ha[d] been accorded discretion to enlarge the
[time] period ‘even if there is no good cause shown.’” Id. at 662 (emphasis added) (quoting
Fed. R. Civ. P. 4 advisory committee’s note to 1993 amendment).
In the intervening years, “a debate . . . raged” among the district courts within our
circuit as to whether, following Henderson, “Mendez remains good law.” Robinson v.
GDC, Inc., 193 F. Supp. 3d 577, 582 (E.D. Va. 2016). We have previously indicated, albeit
in an unpublished decision, that the Supreme Court’s statement in Henderson should
control, but we “reserve[d]” resolving the conflict between Mendez and Henderson “to
another day.” Scruggs v. Spartanburg Reg’l Med. Ctr., No. 98-2364, 1999 WL 957698, at
*2–3 (4th Cir. 1999) (per curiam). Now, however, we bring our jurisprudence on this issue
in line with Henderson and confirm that the statements in Mendez indicating that a plaintiff
must establish good cause to obtain an extension of time to serve the defendant are no
longer good law. Rather, we hold that under Rule 4(m), a district court possesses discretion
to grant the plaintiff an extension of time to serve a defendant with the complaint and
summons even absent a showing of good cause by the plaintiff for failing to serve the

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defendant during the 90-day period provided by the Rule. And if the plaintiff is able to
show good cause for the failure, then the court must grant the extension.
We cannot in these circumstances fault the district court for its ruling in
conformance with Mendez. But in light of our holding now, we find it necessary to vacate
the district court’s dismissal of the Gelins’ claims against the five health care provider
defendants and remand to allow the court to consider in the first instance the parties’
arguments as to whether the court should exercise its discretion to extend the time for
serving those defendants in the circumstances of this case, even though good cause was not
shown.
Accordingly, the district court’s August 1, 2018 order dismissing the Gelins’ claims
against Shuman, Saint Fleur, Titus, Sevier, and Bahr is affirmed in part and vacated in part,
and the case is remanded for further proceedings consistent with this opinion.
IT IS SO ORDERED.

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