Case Information
*1 Before R OVNER H AMILTON S T . E VE , Circuit Judges . R OVNER Circuit Judge. dismissed this personal injury failure timely complaint defendants. Because two days short period, this ended litigation. We find court’s decision, so affirm. ‐
This diversity suit arose automobile accident that occurred on October 28, 2016. The plaintiff, Jones, was passenger in Uber car owned by Jerilyn Langwith driven by Daniel Waterhouse. That car was struck by a second vehicle owned by Mario Ramos and driven by Kevin Ramos. Uber those four individuals are defendants. Although accident occurred Indiana, Ramos defendants are citizens of New Jersey. Jones, who was injured accident, filed suit federal New Jersey on October 26, 2018, two days before applicable of was due run. After plaintiff’s attorney failed effect service summons complaint on any within ninety day period prescribed Federal Rules Civil Procedure, New Jersey issued a Notice Call Dismissal Pursuant Fed.R.Civ.P. (“Notice”) on Febru ‐ ary 5, 2019. The Notice warned be dis missed on March 5, unless established that service effected within ninety day period filing proof service before March return date.
On March 2019, instead providing proof or attempting serve summons complaint on the defendants, Jones’s counsel venue Northern District Indiana, asserting Uber driver, citizen subject personal jurisdiction Jersey. New granted motion, directed serve copy venue order on within five days. plaintiff’s counsel served venue order on but still complaint. Three months later, on June Waterhouse two grounds: first, 20 under Rule 12(b)(5), for failure to timely serve the summons and complaint as set forth Rule 4(m); and second, under 12(b)(6), for failing to properly commence the within the statute of limitations. Nine days later, new counsel Jones entered appearance the Indiana court, and the next day began the process of serving the summons complaint on all the defendants. Ultimately, the summons and complaint was served on all defendants between June and June 2019, between to days filing complaint. Within weeks, Uber and Langwith joined Waterhouse’s motion to dismiss, and on August Ramos their own motion seeking dismissal same reasons given Waterhouse.
Jones asked to exercise to deny dismiss, noting that all now been served, and asserting that none were prejudiced delay. pointed out that defendants aware litigation within days venue latest, and that some delay serving sum mons complaint was due efforts find new counsel who then quickly effect service. Jones ‐ 2017 argued that New Jersey court could dismissed the case rather than allow change venue, but did not do so and asked Indiana court honor that decision. Jones explained that even dismissal without prejudice would essentially end case because limitations period had passed.
The Indiana court found that there good cause delay, declined exercise to grant extension. noted Jones’s New Jersey counsel not failed follow but also ignored Notice issued, warning dismissal by March if he failed comply. Moreover, after change venue, Jones still did effect process, instead waited until after one moved case before serving complaint. court considered non exhaustive list factors set forth in City Chicago 2011), concluded circumstances this case “invite permissive extension.” missed three opportunities over course approximately days: first, within ninety day period prescribed Rule 4(m); second, New Jersey issued Notice warning imminent March 2019; third, three months after venue. Aware dismissal end because period, nevertheless dismissed. reconsideration 60(b), attach ‐ ing affidavit his lawyer explaining his efforts settling filing com plaint, his difficulties finding local counsel Indiana (where 20 he is not licensed practice law) venue, his personal struggles with illness death family member during time that motion dismiss was under consideration. denied motion, finding that not meet stringent standards relief under Rule 60(b), noting all information provided affidavit his lawyer was available dismiss. Finally, found information provided affidavit demonstrated occasioned delay greater than been apparent earlier, for under Rule 4(m) stronger. The denied motion. appeals.
We review court’s decision whether or extend period time for service Rule for abuse discretion. Henderson v. United States , 517 U.S. 654, 662–63 (1994); 646 F.3d at 1005; Fed. R. Civ. P. 4(m). We review court’s decision deny relief 60(b) an only. Adams v. United States 911 F.3d 403 (7th Cir. 2018). 60(b) provides relief extraordi nary situations where judgment inadvertent product special circumstances merely erroneous application law. Adams F.3d 403 (citing Kennedy v. Schneider Elec. , 2018)). Once has denied relief, “Rule 60(b) proceedings are subject only limited deferential appellate review.” Gonzalez Crosby , U.S. (2005). factors courts typically consider deciding whether grant extension time process include but are limited to: whether defendant’s ability to defend would be harmed an extension; whether the defendant received actual notice; whether statute limitations prevent refiling action; whether the defendant evaded service; whether defendant admitted liability; whether will result windfall to defendant; whether plaintiff eventually effected service; whether plaintiff ever requested extension the due difficulties perfecting service; whether the diligently pursued service during allotted period. Cardenas F.3d at 1006–07. “Even if balance hardships appears favor extension, retain[s] its hold Plaintiffs accountable their ac ‐ tions—or, more accurately, inaction—by dismissing case.” F.3d 1007. See also Panares Liquid Carbonic Indus. Corp. 1996) (citing Advi sory Committee Note as what factors court may want consider deciding exercise its discretion, including whether applicable would bar refiled action, or whether defendant evading or conceals defect attempted service). methodically considered these factors in deciding motions dismiss, then reweighed them light additional information provided 60(b) motion. In each instance, some factors favored granting an extension others favored dismissal. In initial ruling, noted some had actual notice service, had experienced real prejudice, all eventually served. On other side equation, none evaded service, through fault their own woul d now defend suit long the of limitations had expired and memories begun fade. Moreover, Jones never to extend the time for either New Jersey or Jones’s lawyer did not diligently pursue service. After the filing of the Rule 60(b) motion, the learned that although some aware litigation was imminent because pre filing settlement discussions, other actual notice receiving venue ruling. And considering information provided affidavit with Rule 60(b) motion, found was more manifest than original record revealed. On balance, both original its Rule 60(b) ruling, declined extend time service. “If properly sets out relevant law makes no factual findings are clearly erroneous, abuse discretion exists if its decision arbitrary unreasonable.” F.3d (internal quotation marks omitted). Here, court accurately set out applicable law made no clearly erroneous factual findings; decision deny relief was neither arbitrary nor unreasonable. And does come close meeting standard overturning district court’s 60(b) ruling. There either ruling.
Only one matter remains. asks adopt rule Fifth Circuit employs preju dice ends litigation because running limitations period. In Fifth Circuit, if applicable statute likely bars future litigation, court’s d ismissal claims reviewed 20 same heightened standard used review a dismissal with prejudice. Thrasher v. City Amarillo , 709 F.3d 512 (5th Cir. 2013). Because dismissal with prejudice is a severe sanction deprives a litigant opportunity pursue his claim, Fifth Circuit holds it is warranted only where clear record delay or contumacious conduct exists lesser sanction better interests justice. delay must be lengthy must be characterized significant periods total inactivity Thrasher F.3d at 512–13. See also Millan v. USAA Gen. Indem. Co. F.3d Cir. 2008) (setting forth grounds dismissal with prejudice).
In dismiss 4(m), our circuit requires consider whether will end litigation as one factor be weighed with others. We have required no heightened standard motions 4(m) cases close end limitations period. In fact, warned attorney who files suit about expire must take special care achieve timely process because slip up can be fatal. Tuke United States (7th 1996). We see reason revisit existing standards our circuit. when it reasonably applied prevailing Seventh Circuit law.
AFFIRMED.
[1] Waterhouse’s theory 12(b)(6) was nearly blank summons submitted District Court was insufficient commence litigation, so was time barred limitations. concluded summons sufficient dismissed on alternate ground Jones failed timely complaint. Because we resolve this appeal second issue, we decline address whether summons sufficient commence litigation, will address this issue further.