Henderson v. United States, 517 U.S. 654, 9 (1996)

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662

HENDERSON v. UNITED STATES

Opinion of the Court

United States marshals attended to service. The relevant Rule 4 provisions read:

"(a) Summons: issuance. Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the marshal or to any other person authorized by Rule 4(c) to serve it. . . .

. . . . . "(c) By whom served. Service of process shall be made by a United States marshal, by his deputy, or by some person specially appointed by the court for that purpose . . . ." Fed. Rule Civ. Proc. 4(a), (c) (1980).

Marshals were expected to effect service expeditiously, and Rule 41(b), providing for dismissal "[f]or failure of the plaintiff to prosecute," could be invoked as a check against unreasonable delay. See 9 C. Wright & A. Miller, Federal Practice and Procedure § 2370, pp. 374-376 (2d ed. 1995); 2 J. Moore, Moore's Federal Practice ¶ 4.18, p. 436 (2d ed. 1995).

Rule 4 changes made operative in 1983 completed a shift in responsibility for service from the United States marshals to the plaintiff. See Mullenix, Hope Over Experience: Mandatory Informal Discovery and the Politics of Rulemaking, 69 N. C. L. Rev. 795, 845 (1991). With marshals no longer available as routine process servers, the Judicial Conference considered a time control necessary; the Conference proposed, and this Court approved, 120 days from the filing of the complaint as the appropriate limit. Congress relaxed the rule change by authorizing an extension of the 120-day period if the party responsible for service showed "good cause." See supra, at 661; 128 Cong. Rec. 30931-30932 (1982), reprinted in 28 U. S. C. App., p. 647.

Most recently, in 1993 amendments to the Rules, courts have been accorded discretion to enlarge the 120-day period "even if there is no good cause shown." See Advisory Committee's Notes on Fed. Rule Civ. Proc. 4, 28 U. S. C. App.,

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