Q: FRCP 4(c) - construed. 90 days from date A, or B?
If Federal Case was filed on date A, but summons was not issued: first amended complaint was ordered by Judge.
Summons was issued on First Amended Complaint, on date B.
90 days for service on Summons/Complaint on Defendant start counting from date A, or from date B?
A:
In the scenario you described, the 90-day period for service of process under Federal Rule of Civil Procedure (FRCP) 4(c) would start counting from date B, which is the date when the summons was issued on the first amended complaint.
Here's the reasoning:
1. When a complaint is initially filed (date A in your example), the court typically issues a summons to be served on the defendant along with the complaint. However, in your case, the summons was not issued at that time.
2. The judge then ordered the plaintiff to file an amended complaint. Once the first amended complaint was filed, the court issued a summons (date B).
3. FRCP 4(m) states that if a defendant is not served within 90 days after the complaint is filed, the court must dismiss the action without prejudice or order that service be made within a specified time. However, if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
4. In this case, the "complaint" mentioned in FRCP 4(m) would refer to the first amended complaint, as it supersedes the original complaint. Therefore, the 90-day period for service would start from the date the summons was issued on the first amended complaint (date B).
It's important to note that if there was a significant delay between the filing of the original complaint (date A) and the issuance of the summons on the first amended complaint (date B), the court might still consider the total time elapsed when determining whether to dismiss the action or grant an extension for service under FRCP 4(m).
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