43. Service Of Process

An action is commenced in a United States district court by the filing of a complaint. See Fed. R. Civ. P. 3. In an action involving a federal question or statute -- as opposed to diversity actions -- the filing of the complaint tolls the statute of limitations. See West v. Conrail, 481 U.S. 35 (1987). Thus, it is not necessary that service of the summons and complaint be accomplished within the applicable limitations period in such cases unless Congress expressly so provides.

Rule 4(m), Fed. R. Civ. P. provides that "[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified period; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period." The 1993 Advisory Committee Note for Fed. R. Civ. P. 4(m) comments that, even if good cause for failure to timely effectuate service is not shown, relief from application of the rule "may be justified, for example, if the applicable statute of limitations would bar the refiled action." With regard to relief from the application of these time requirements upon a showing of good cause, the 1993 Advisory Committee Note also refers to the provisions of Fed. R. Civ. P. 4(i)(3), "which provides for extensions if necessary to correct oversights in compliance with the requirements of multiple service in actions against the United States or its officers, agencies, and corporations." But see Tuke v. United States, 76 F.3d 155, 158 (7th Cir. 1996) (Fed. R. Civ. P. 4(i)(3) deals in cases in which plaintiff must serve federal officers in addition to the USA and the Attorney General). In cases under the Suits in Admiralty Act, note that the SAA requirement for "forthwith" service does not override the 120-day limit of Rule 4. Henderson v. United States, 517 U.S. 654 (1996).

[updated May 1998] [cited in USAM 4-2.300]