Richard Snyder v. CAROLYN SWANSON Personal Representative Estate of George Swanson, Carolyn Swanson

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3164
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RICHARD SNYDER,
Appellant
v.
CAROLYN SWANSON
Personal Representative Estate of George Swanson,
Carolyn Swanson and Robert Swanson;
CAROLYN SWANSON; GEORGE SWANSON
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil Action No. 08-cv-00880)
District Judge: Honorable Gregory M. Sleet
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 16, 2010
Before: MCKEE, FUENTES and NYGAARD, Circuit Judges
(Opinion filed: March 22, 2010)
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OPINION
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PER CURIAM
Pro se appellant Richard Snyder appeals from the order of the United States
District Court for the District of Delaware dismissing his complaint. We will affirm.

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On November 24, 2008, Snyder filed his complaint in District Court, naming as
defendants Carolyn Swanson, personal representative of the estate of George Swanson;
Carolyn Swanson; and Robert Swanson. According to the allegations, the matter stems
from a frustrated real estate contract, and Snyder has a history of litigation with the
defendants in state and federal courts. Snyder sought to have prior state and federal court
rulings vacated so that he could proceed on his claims in federal court, and he requested a
jury trial. Summons was issued to attorney Walter W. Green, a non-party, and was
returned as executed. On March 30, 2009, the District Court ordered Snyder to show
cause why the case should not be dismissed for failure to serve under Rule 4(m) of the
Federal Rules of Civil Procedure. Snyder filed a response, contending, among other
things, that Green and his limited liability company have represented the defendants in
other matters relating to his case. Attached to Snyder’s response was a letter from Green
dated March 19, 2009, informing Snyder that at no time did he agree to accept service on
Carolyn Swanson’s behalf and that the process server did not personally serve Green but
instead served a secretary in his office. Nevertheless, Snyder argued that service was
proper on Green as the defendants’ agent. Alternatively, Snyder requested limited
discovery to establish the facts contained in his process server’s affidavit, or, an
additional sixty days to complete service on the defendants’ attorneys.
On June 11, 2009, the District Court rejected Snyder’s contentions and determined
that Snyder had not served the defendants properly under Rule 4. Further, the District

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It appears from Snyder’s complaint that his lawsuit is based on an underlying real1
estate deal that is the subject of a lawsuit he filed against the defendants in Maryland state
court in 2002. Because it also appears that the statute of limitations on his claims has run,
we conclude that the District Court’s dismissal without prejudice is a final decision. See
Ahmed v. Dragovich, 297 F.3d 201, 207 (3d Cir. 2002) (holding that an order dismissing
a claim without prejudice is a final appealable order if the statute of limitations for that
claim has expired). See also Md. Code § 5-101.
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Court found that Snyder had made no attempts to effect proper service upon receiving
Green’s letter or upon receiving the order to show cause. Thus, the District Court
concluded that Snyder had not demonstrated good cause for his failure to serve his
complaint on the defendants and dismissed the case under Rule 4(m). Snyder filed a
timely motion for reconsideration, which the District Court denied by order entered June
30, 2009.
Snyder appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review1
the District Court’s order for abuse of discretion. See Petrucelli v. Bohringer &
Ratzinger, 46 F.3d 1298, 1308 (3d Cir. 1995). Under Rule 4(m), the District Court must
first determine whether good cause exists for failure to serve. Id. at 1305. If good cause
exists, the District Court must extend the time for service. Id. If good cause does not
exist, the District Court has discretion either to dismiss the complaint without prejudice or
to extend the time for service. Id.
We agree with the District Court that Snyder has not shown good cause for his
failure to serve. Snyder’s main argument is that he properly served the defendants by
serving Green, contending that Green was authorized to accept service as the defendants’

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agent under Rule 4(e). Snyder bases his assertion on Green’s having acted as counsel in
prior litigation. There is no showing that Green was expressly “authorized by
appointment or by law” as Rule 4(e) contemplates. Rather, Snyder argues that Green’s
authority to accept service is implied. We do not credit this argument of implied authority
when the record shows that Green himself expressly and unambiguously informed Snyder
that he did not agree to accept service. Moreover, from the documents Snyder submitted
in support of his response to the District Court’s show cause order, as well as statements
made in Snyder’s brief, it is uncontested that the process server did not personally serve
Green and instead served a secretary present in Green’s office. Snyder’s arguments
regarding the propriety of service delivered to a secretary in Green’s office fares no
better. Snyder argued in his response to the show cause order that the process server’s
handing the summons and complaint to Green via the secretary–an employee of Green’s,
or of Daniels & Green, L.L.C.–constitutes proper service on both Green and the limited
liability company of which Green is a member. However, Snyder is not suing Green or
the L.L.C.; he is suing the defendants named in the complaint. Thus, it is irrelevant
whether service could be deemed proper as to Green or the company. We are
unpersuaded by Snyder’s reliance on this set of facts.
For similar reasons, the District Court did not abuse its discretion in dismissing the
complaint rather than extending the time for service. See MCI Telecommunications
Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1098 (3d Cir. 1995). As the District Court

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That Snyder’s claim may be time-barred, see supra note 1, does not alter our2
analysis. The expiration of the statute of limitations does not require a district court to
extend the time for service; the court has discretion to dismiss the case even if the refiling
of the action is time-barred. See MCI Telecommunication Corp., 71 F.3d at 1098 (citing
Petrucelli, 46 F.3d at 1306).
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noted, although Snyder is proceeding pro se, by his own account, he is an experienced
litigant. Further, the District Court duly considered that Snyder made no attempt to serve
the defendants properly after receiving Green’s letter or after receiving the show cause
order. Snyder argues that the District Court failed to consider his request to extend the
time for effecting service. In fact, the District Court recognized Snyder’s request for
additional time. (See June 3, 2009 Mem. Order at 2.) Moreover, in his response to the
show cause order, Snyder emphatically argued that service already was accomplished
properly. In seeking an extension of time to comply with Rule 4, Snyder stated his intent
“to again serve these attorneys who always have, and continue to, represent defendants.”
(Response to Show Cause Order at 6.) Given that Snyder’s request to extend the time to
serve the complaint actually evidenced his refusal to effect service on the defendants and
his continued pursuit to serve Green, we view dismissing the complaint as an appropriate
exercise of the District Court’s discretion. We also discern no error in the District2
Court’s denial of Snyder’s motion for reconsideration.
We will affirm the District Court’s judgment.

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