United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE
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).
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.
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.
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.
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
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.
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);
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).
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.
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).
60(b) offers grounds for relief from a final judgment, order,
or proceeding, see Fed. R. ...