On 7 November 2022, the plaintiff filed its complaint in this action. On 7 February 2023, noting the plaintiff's failure to file proof of service of the summons and complaint on the defendants, or request an extension of time to do so, the Court ordered the plaintiff to show cause why this action should not be dismissed under the Federal Rules of Civil Procedure (FRCP) r 4(m) or r 41(b). On 21 February 2023, the plaintiff filed a motion requesting an extension of time to serve the defendants.

Held: The motion is granted.

Under FRCP r 4(m):

If a defendant is not served within 90 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. ... But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Here, the plaintiff failed to demonstrate good cause for its failure to effect timely service. Indeed, the plaintiff concedes that it cannot demonstrate good cause.

Despite the plaintiff's failure to demonstrate good cause, however, the Court may, in its discretion, extend the plaintiff's deadline to effect service. See Fantozzi v City of New York 343 FRD 19, 26 (SD NY 2022) ('District courts retain discretion to grant extensions of time even absent good cause shown.'). In determining whether to grant a discretionary extension, Courts look to '[i] whether any applicable statutes of limitations would bar the action once refiled; [ii] whether the defendant had actual notice of the claims asserted in the complaint; [iii] whether defendant attempted to conceal the defect in service; and [iv] whether defendant would be prejudiced by extending plaintiff's time for service': Zapata v City of New York 502 F 3d 192, 196 (2d Cir 2007).

Having considered the relevant Zapata factors, the Court concludes that a discretionary extension is appropriate.

The first factor weighs heavily in the plaintiff's favour, in that the applicable statute of limitations would bar its claim, were the action dismissed and refiled. The plaintiff had until 7 November 2022 to initiate an action in federal district court. See the US Carriage of Goods by Sea Act (COGSA) 46 USC § 1303(6); Russul Corp v Zim Am Integrated Shipping Servs Co No 06 Civ 0037 (JCF), 2009 WL 3247141 *4 (SD NY 2009) (observing that COGSA's 'statute of limitations provides that "the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered," as long as the shipper is given notice of the loss or damage.'); see also Old Toledo Brands Inc v Schenker Inc 590 F Supp 2d 588, 592 (SD NY 2008) ('COGSA's statute of limitations is waivable'.). The plaintiff filed the complaint on 7 November 2022, the final day of the limitations period. The statute of limitations was then 'tolled during the pendency of the Rule 4(m) period': Brunson-Bedi v New York, No 15 Civ 9790 (NSR), 2018 WL 2084171 *7 (SD NY 2018). Once the plaintiff failed to effect service within the 90-day period, however, 'the governing statute of limitations again [became] applicable, and the plaintiff [was required to] refile prior to the termination of the statute of limitations period': Frasca v United States 921 F 2d 450, 453 (2d Cir 1990). Here, the plaintiff failed to effect service within the Rule 4(m) period, which expired on 6 February 2023. Thus, dismissal of this action at this point would, in effect, bar the plaintiff's claims.

The second factor also weighs in the plaintiff's favour. While the plaintiff failed to serve the summons and complaint within the required 90-day period, it provided notice to the defendants of the claims for nearly a year, provided prelitigation documents and materials in support of its claims for Maersk's inhouse counsel's review and consideration, and actively attempted to resolve the dispute with Maersk, whereby the parties agreed to waive the COGSA statute of limitations until 7 November 2022.

The third factor does not weigh in the plaintiff's favour, as there is nothing to suggest that the defendants attempted to conceal the defects in service.

As to the fourth factor, although there can be no doubt that there is prejudice to the defendants by extending the plaintiff's time to serve the defendants, the proposed extension of time to complete service of process of the summons and complaint by 3 March 2023 is modest, reasonable, and does not rise to the level of prejudice necessary to tip the balance of this factor in the defendants' favour.

On balance, the Zapata factors weigh against dismissal and support granting the plaintiff a final opportunity to effect proper service.