Fourth Circuit tolls service period for IFP plaintiffs.

by Kirsten E. Small

The Fourth Circuit held today that a magistrate judge's order prohibiting issuance and service of process by the court clerk until instructed otherwise by the court tolls the 120-day service period unter Rule 4(m). Robinson v. Clipse, No. 08-6670 (April 28, 2010).

The issue arose as a result of the court's application of the "relation back" rule of Rule 15(c). Robinson named the wrong defendant (the South Carolina Highway Patrol) in a § 1983 action alleging excessive force by Trooper Joseph Clipse. The magistrate judge directed the district court clerk not to serve the complaint until further order* and recommended to the district court that the complaint be dismissed. Robinson moved to add Clipse as a defendant but the court denied the motion and dismissed the complaint on the basis that Clipse was entitled to qualified immunity.

After the Fourth Circuit reversed, Robinson sought to file an amended complaint naming Clipse. Rule 15(c)(1)(C) allows such amendments provided the new party has knowledge of the complaint "within the period provided by Rule 4(m) for serving the summons and complaint." The district court authorized service on July 3, 2007.

The district court dismissed the complaint, holding that the amended complaint did not relate back because Clipse did not have notice of the complaint "within the limitation period" for Robinson's claim, i.e., by November 14, 2005. As the Fourth Circuit noted in reversing, Rule 15(c)(1)(C) requires that the party have notice within the 120-day service window of 4(m), not within the statute of limitations for the claim.

The Court further held that because IFP plaintiffs are at the mercy of the court for service, entry of an order prohibiting service tolls the 120-day service period. Thus, Rule 15(c)(1)(C) only required Robinson to show that Clipse had notice within 120 days of July 3, 2007, the first time the court authorized service. Because Clipse had actual notice well before the expiration of this period, the amendment related back and dismissal was improper.

Commentary: This seems like a pretty common-sense ruling to me. Magistrate judges routinely forbid service of IFP complaints pending an initial evaluation of the claim. As the Court noted, it is manifestly unfair to place the burden of this pre-service review on the litigant, who has no control over its length. Moreover, the holding is consistent with the federal courts' general policy of leniency to pro se litigants (as IFP filers almost universally are)--it is hardly surprising that Robinson would name Clipse's employer, rather than Clipse himself, as the entity responsible for paying damages. The tolling rule adopted by the Fourth Circuit provides some protection from mistakes like Robinson's.

*Because Robinson was proceeding in forma pauperis, the complaint was to be served by the U.S. Marshals Service.