I knew this was going to happen. It's the first day of the Spring semester, and I have two classes today. Plus grading to finish by the end of the week and edits of an article that the law review wants no later than the end of the day today. So, of course, the Ninth Circuit -- after the long weekend -- publishes ten different opinions. Let's hear it for starting your day with 200 pages of dense legal prose.
Okay, I'll stop complaining now. Actually, several of the Ninth Circuit opinions were pretty interesting. This one, for example, was something that I've never seen before -- indeed, that (to my knowledge) is the first of its kind ever. It's a rare case, and involves a lawsuit in which service of process was not made on the defendant at issue for a full seven years after the filing of the complaint. That's a long time; indeed, even after reading the facts of the case, I don't understand how the matter was left to languish for so long, especially in this era of fast track courts and pretty effective case management strategies. Regardless, apparently it happens, and in this case, the defendant moved to dismiss under Rule 4(m) given the seven-year delay, the district court denied the motion and gave the plaintiff another 30 days, plantiff successfully served, defendant lost at trial, and defendant appeals, claiming that the extension of the 120-day period for service of process under Rule 4(m) was an abuse of discretion.
And Judge Graber agrees. As far as I can tell, this is the first published federal appellate opinion ever in which an extension under Rule 4(m) has been held to be an abuse of discretion. Rarely do you see "firsts" nowadays, and I think this may well be one. So that's interesting.
The case is also worth mention because Judge Willie Fletcher's dissent is very -- and sincerely -- moderate and respectful. It begins with this line: "I respectfully dissent in this close case." Which is a nice way to begin, and the remainder of his dissent continues this refrain. Including this paragraph, which I think captures the calm and dispassionate nature of Judge Fletcher's dissent (as well as his views on the merits): "Further, although Williams was prejudiced by delay, and although seven years is an extraordinary delay, the most significant prejudice to Williams’ defense cannot be attributed to this delay’s extraordinary length. The greatest harm to Williams’ defense between 1996 and 2003 was the death of Williams’ co-defendant Kerr. Kerr’s testimony might have corroborated Williams’ account and convinced the jury to hold in her favor. We were told at argument that Kerr died in 1998, only two years into the delay. Two years’ delay in serving a defendant is not extraordinary. See, e.g., McGuire v. Turnbo, 137 F.3d 321, 323-24 (5th Cir. 1998) (service timely where plaintiff served defendant within court’s extended deadline, nearly two years after filing suit). Thus, the extraordinary length of the delay in this case contributed less to the prejudice to Williams than it might seem at first blush, and certainly contributed less than if Kerr had died in the seventh year (in which case I might have joined the majority)." Rarely do you read dissents that admit that the change of a single fact might well have changed the dissenter's vote.
Ironically enough, I'm going to talk about service of process today in my Pretrial Practice class. Which begins in 25 minutes, so I'll finish up for now. Suffice it to say that I enjoyed this opinion, and at eight pages, it isn't a long one at all. It's a nice, compact dispute -- and one worth reading even for those less obsessed than I am with procedural minutia.
