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Webb v. Dallas Area Rapid Transit Dart

United States District Court, N.D. Texas, Dallas Division

February 1, 2018




         This pro se action, which was referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and an order of reference from Chief Judge Barbara M. G. Lynn, see Dkt. No. 7, was dismissed without prejudice under Federal Rules of Civil Procedure 4(m) and 41(b) on January 4, 2018. See Dkt. Nos. 38 & 39; see also Dkt. No. 37 (undersigned's findings, conclusions, and recommendation, dated Dec. 8, 2017, to which no objections were filed).

         On January 26, 2018, Plaintiff Deninah Goodwin Webb filed a Motion to Reopen Case [Dkt. No. 42], which Judge Lynn referred to the undersigned for a hearing, if necessary, and recommendation or determination, see Dkt. No. 43. Defendant Dallas Area Rapid Transit (“DART”) filed a response in opposition. See Dkt. No. 48. Webb filed a reply brief. See Dkt. No. 45. And the undersigned issues these findings of fact, conclusions of law, and recommendation that the Motion to Reopen Case, construed as a motion under Federal Rule of Civil Procedure 60(b), should be denied.

         Applicable Background

         Webb, at the time represented by retained counsel, initially filed this employment discrimination action against DART and two of its employees (Rene Garner and Jose Cortana). See Dkt. No. 1. Counsel moved to withdraw on April 19, 2017. See Dkt. No. 9.

         On April 27, 2017, the Court held a status conference at which now-former counsel for Webb informed the Court that, although his office obtained summonses from the Clerk of Court, his office had yet to serve the complaint. Counsel then offered to serve the complaint prior to his withdrawal, but Webb declined that offer and informed the Court that she would handle service herself. See Dkt. Nos. 12 & 13.

         The Court entered an order the same day that, among other things, granted Webb's then-counsel leave to withdraw and advised Webb that, “if proper service is not made before the 90th day after the filing of this action (which occurred on March 28, 2017) that is not a Saturday, Sunday, or legal holiday - which, here, will be June 26, 2017 - this case is subject to dismissal without prejudice unless she shows good cause for her failure to timely and properly effect service and for the Court to extend the time for service for an appropriate period.” Dkt. No. 13 at 6-7 (citing Fed.R.Civ.P. 4(m), 41(b)); see Id. at 6 (advising Webb that “she must serve each defendant in compliance with, as applicable, Rules 4(c), 4(e), or 4(h) and file proofs of service with the Court in accordance with Rule 4(l)”).

         On May 24, 2017, Webb filed an amended complaint, which added additional defendants. See Dkt. No. 14. But the filing of that complaint did not extend the deadline by which Webb was to have perfected service as to at least the defendants named initially. See Dkt. No. 15.

         On September 13, 2017, the Court accepted the undersigned's August 22, 2017 findings of fact, conclusions of law, and recommendation that DART's initial motion to dismiss based on insufficient service be denied but that Webb's previous, defective service attempts be quashed. See Dkt. Nos. 29 & 30. And Webb was ordered to “properly serve all named defendants in the operative complaint [by October 13, 2017].” Dkt. No. 30; see also Dkt. No. 31 (warning Webb that “[t]he failure to do so will result in a recommendation that this action be dismissed without prejudice” (citing Fed.R.Civ.P. 4(m); Fed.R.Civ.P. 41(b))).

         In response to the Court's order quashing her previous, defective services of process, Webb merely submitted filings that at best set out her service attempts prior to entry of the order quashing those attempts. See Dkt. Nos. 32 & 33; see, e.g., Dkt. No. 33 at 9-12 (proofs of service dated Aug. 3, 2017).

         DART then moved again for dismissal based on insufficient service of process, on October 20, 2017. See Dkt. No. 34. Webb failed to file a response to the motion by the court-imposed, November 22, 2017 deadline, see Dkt. No. 35, but, on December 12, 2017, she filed a Pre-Trial - Conference Statement, which failed to address the service issues that have plagued this action, see Dkt. No. 36. This deficient response measured against the record set out above prompted the undersigned to recommend, on December 8, 2017, that DART's renewed motion to dismiss be granted and that this action be dismissed without prejudice under Rules 4(m) and 41(b). See Dkt. No. 37.

         Legal Standards

         A pro se motion attempting to reopen a closed case, liberally construed, falls “under Federal Rule of Civil Procedure 60(b).” Green v. State Farm, No. 3:17-cv-1032-D-BH, 2017 WL 3835873, at *2 (N.D. Tex. Aug. 7, 2017) (citing Smith v. Tex. Dep't of Criminal Justice, Institutional Div., 79 F. App'x 61, 62 (5th Cir. 2003) (per curiam) (construing a pro se prisoner's motion to reopen his civil rights complaint, dismissed under Federal Rule of Civil Procedure 41(b), as a motion under Rule 60(b))), rec. adopted, 2017 WL 3780488 (N.D. Tex. Aug. 31, 2017); see also Duru v. TSPMG Kaiser Permanente Ga., No. 3:14-cv-3817-N-BN, 2015 WL 9243806, at *1 (N.D. Tex. Nov. 12, 2015) (where a pro se plaintiff failed to “specify the legal basis for the relief she” sought, construing her request that “‘the Court [ ] vacate its prior order dismissing her action ... as being filed pursuant to Rule 60(b)'” (quoting Jones v. Thomas, 605 F. App'x 813, 815 n.1 (11th Cir. 2015) (per curiam); original brackets omitted)), rec. accepted, 2015 WL 9193286 (N.D. Tex. Dec. 17, 2015).

         Rule 60(b) offers grounds for relief from a final judgment, order, or proceeding, see Fed. R. ...

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