## Facts

- Dr. McCurdy, a physician practicing cosmetic plastic surgery in Hawaii, was not certified by the American Board of Plastic Surgery (ABPS).
- ABPS is a private, nonprofit professional certifying board that sets standards and grants board certification in plastic surgery.
- McCurdy sued ABPS in federal court asserting federal antitrust and related state-law unfair competition claims, alleging ABPS’s certification practices harmed non-certified physicians’ ability to compete.
- McCurdy filed in the District of Hawaii and attempted service on ABPS in October 1996; ABPS later disputed that service was timely and proper under Federal Rule of Civil Procedure 4(m)’s 120-day deadline (as then in effect).
- The case was transferred to the Eastern District of Pennsylvania, where ABPS is located.
- After transfer, ABPS moved to dismiss based on untimely service; McCurdy argued ABPS waived the defense and requested additional time to serve.
- The district court dismissed the action for failure to effect timely service and denied an extension request.

## Issues

1. Whether McCurdy effected service on ABPS within Rule 4(m)’s 120-day period.
2. Whether ABPS waived its Rule 4(m)/service objections through its litigation conduct.
3. Whether the district court abused its discretion by denying an extension of time to serve and dismissing the action.

## Decision

- The Third Circuit affirmed the dismissal.
- The court held McCurdy did not effect timely service within Rule 4(m)’s 120-day period.
- The court held ABPS did not waive its objections to service.
- The court held the district court did not abuse its discretion in denying an extension and dismissing the complaint without reaching the merits of the antitrust claims.

## Legal Principles

- Rule 4(m) requires service within the prescribed period; absent timely service, the court may dismiss without prejudice or order service within a specified time.
- A plaintiff must show good cause to compel an extension; lacking good cause, an extension remains discretionary with the district court.
- Waiver of service-related defenses requires conduct showing intentional relinquishment; participation in litigation steps does not, by itself, waive a preserved or timely raised service objection.
- Appellate review of a Rule 4(m) dismissal and denial of an extension is for abuse of discretion.

## Conclusion

The Third Circuit upheld dismissal because the plaintiff failed to serve the defendant within Rule 4(m)’s deadline, the defendant did not waive service objections, and the district court acted within its discretion in denying additional time for service and dismissing the case without addressing the antitrust allegations.


McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191 (3d Cir. 1998)