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Opinion 387

Case Name: 

Broitman v. Kirkland (In re Kirkland)

Judge: 
Tenth Circuit Court of Appeals
Date: 
Jun-12-1996
Case Number(s): 
94PB-2210, 94PB-2209
Status: 

APPEAL
86 F.3d 172 (10th Cir.)
See also 181 B.R. 563 (D. Utah)

Body: 

Plaintiffs failed to show good cause for their failure to timely serve defendant with complaint and summons. The Supreme Court's decision in Pioneer Investment Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380 (1993), does not link the concept of "excusable neglect" contained in Fed. R. Bankr. P. 9006(b)(l) with the concept of "good cause" contained in Fed. R. Civ. P. 4(j), and there are several reasons not to apply the flexible "excusable neglect" concept to the "good cause" standard in Rule 4(j). The plain meaning of the term "neglect" connotes negligence or inadvertence. The plain meaning of the phrase "good cause" has no such connotation. Rule 4(j) does not use the phrase "excusable neglect." Rule 9006's allowance for late filings due to "excusable neglect" serves an equitable purpose in Chapter 11 proceedings. Rule 4(j), by contrast, applies to a wide variety of proceedings and does not have a similar, equitable purpose. Rule 4(j) operates independently from Rule 9006(b)(1), and Rule 9006(b)(1) may actually relieve litigants from the harsh consequences of Rule 4(j). As Putnam v. Morris, 833 F.2d 903 (10th Cir. 1987) explains, the definition of "good cause" appears to require "at least as much as would be required to show excusable neglect."

Internal Ref: 
Opinion 387
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