ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. D.C. Civil No. 85-6229.
Before: GIBBONS, Chief Judge and McCUNE, District Judge*fn*
This appeal presents a question concerning the interrelationship between Fed. R. Civ. P. 4(c)(2)(B)(iii) and the 120-day period permitted by Fed. R. Civ. P. 4(j) to effect service of process. We must determine whether the district court properly concluded that the plaintiff's reliance upon the representation of a specially-appointed process server, that service had been made on time, failed to establish good cause to excuse the plaintiff's failure to make service of process upon the defendant until 55 days after the 120-day time limit required by Fed. R. Civ. P. 4(j) had expired. We will affirm.
In October, 1976, the plaintiff, Sheldon Lovelace, was hired as a cashier by the defendant, Acme Markets, Inc. (Acme). Lovelace, who is black, contends that throughout the course of his employment he was discriminated against on the basis of his race. He claims that on May 12, 1984 this discriminatory treatment culminated in his discharge.
On October 29, 1984, Lovelace filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in which he alleged that Acme had discriminated against him on the basis of race. The EEOC issued a Notice of Right to Sue on August 1, 1985. On October 29, 1985 Lovelace filed a complaint in the United States District Court for the Eastern District of Pennsylvania alleging a violation of 42 U.S.C. § 2000e-2 (1982) and various pendent state claims.
Lovelace's counsel selected the Fed. R. Civ. P. 4(c)(2)(B)(iii) method for service of process and filed a Motion for Special Appointment to Serve Process designating Michael Damiano for the purpose of serving the summons and complaint upon the Acme. The district court granted this motion on October 29, 1985 and Damiano was provided with all the necessary papers and directions for effective service of process upon Acme. On December 2, 1985, Lovelace's counsel received a bill from Damiano that represented that process had been served upon Acme.
On February 26, 1986, coincidentally the 120th day following the institution of the action, and as such the last day under Fed. R. Civ. P. 4(j) to effect timely service of process upon Acme, Lovelace's counsel sent a letter to Damiano requesting adequate proof of such service. Lovelace's counsel was told that the necessary proof would be forthcoming.
On April 1, 1986, Lovelace's counsel received a letter from the clerk for the district to which the case was assigned which stated, first, that the court had not yet received the affidavit of proof of service upon Acme required by Fed. R. Civ. P. 4(g) and, second, that unless Acme were served within 15 days from the date of the letter, the court would commence proceedings to dismiss the action.
Service of process was finally made upon Acme on April 23, 1986, eight days after the deadline set forth in the April 1 letter and 55 days after the deadline established by Fed. R. Civ. P. 4(j).
Acme brought a motion to dismiss for failure to serve process within the 120-day period provided by Fed. R. Civ. P. 4(j) without good cause. Lovelace contended that the district court had good cause to excuse his failure to serve process within the 120-day period. To support that contention Lovelace alleged that he was misled by the ...