United States District Court, E.D. Texas
John W. Bradley, Plaintiff,
American Electric Power, Defendant.
Barker, District Judge
CAMPBELL BARKER UNITED STATES DISTRICT JUDGE.
motion to dismiss (Doc. 6) is before the court on review of
the report and recommendation (Doc. 10) issued by Magistrate
Judge K. Nicole Mitchell. The court adopts
the report's conclusion that plaintiff failed to show
good cause supporting a mandatory extension of the deadline
for service of process. As to the question whether a
discretionary extension is warranted, the court reserves
judgment and orders supplemental briefing as
Defendant's motion to dismiss concerns the time limit for
plaintiff to accomplish service of process. Plaintiff fled
this action on March 8, 2018. Doc. 1. Federal Rule of Civil
Procedure 4(c) required plaintiff to serve the summons and a
copy of the complaint within the time allowed by Rule 4(m),
which is 90 days unless extended by the court. Extensions can
be issued retroactively, but plaintiff has not received such
an extension. Plaintiff did not serve process until November
5, 2018-some 243 days after fling this action. Doc. 5.
service of process was untimely, defendant moves to dismiss
this action without prejudice for insufficient service of
process. Doc. 6. Plaintiff opposes dismissal by seeking a
retroactive extension of the service deadline to 243 days,
which would make service of process timely. Doc. 7 at 2-4.
As authority for dismissal, defendant cites Federal Rules of
Civil Procedure 4(m) and 12(b)(5). Rule 12(b)(5) authorizes
dismissal for insufficient service of process, which includes
untimely service of process. But untimely service can be made
timely by a retroactive extension of the service deadline.
See Fed. R. Civ. P. 4(m). So the plaintiff's
burden to show the validity of service of process when facing
a Rule 12(b)(5) motion to dismiss, Familia de Boom v.
Arosa Mercantil, S.A., 629 F.2d 1134 (5th Cir. 1980),
translates into the plaintiff's burden, if service was
made after the default 90-day deadline, to procure an
extension of that deadline. The court thus analyzes whether
plaintiff has justified such an extension.
Under Rule 4(m), a court must extend the service deadline if
a plaintiff shows good cause for failing to meet the 90-day
deadline. The magistrate judge concluded that plaintiff here
failed to show such good cause. Doc. 10 at 5. Plaintiff did
not object to that fending, forfeiting any challenge to it,
and the court adopts the magistrate
judge's conclusion that no good cause requires a deadline
extension under Rule 4(m).
Rule 4(m) also provides a court discretion to extend the time
for service of process, even without good cause for missing
the 90-day deadline. Thompson v. Brown, 91 F.3d 20,
21 (5th Cir. 1996). Plaintiff requests such an extension.
Doc. 7 at 3.
magistrate judge recommended that the court exercise its
discretion to extend the deadline. Doc. 10 at 6-8. Defendant
objected to that recommendation, Doc. 12, so the court now
considers de novo whether to exercise its discretion to allow
service of process 243 days after this action was fled.
result of denying a retroactive extension is dismissal
without prejudice. See Fed. R. Civ. P. 4(m). While
such a dismissal does not impose the legal consequence of
claim preclusion, it cannot erase the factual passage of time
if the plaintiff refiles the action in the future. So, upon
refiling a complaint that was dismissed without prejudice,
the plaintiff may face time defenses that have accrued, such
as the statute of limitations. As the Third Circuit has
cautioned, “[t]he lesson to the federal plaintiff's
lawyer is not to take any chances. Treat the [deadline] with
the respect reserved for a time bomb.” Braxton v.
United States, 817 F.2d 238, 242 (3d Cir. 1987).
argues that a discretionary time extension should be favored
“to the extent” that dismissal would cause a
“statute of limitations issue” were plaintiff to
refile his complaint. Doc. 7 at 3. The court is unclear on
what that extent is, so the court orders further briefing on
that point as explained below.
Plaintiff brings one state-law claim alleging breach
of his employment contract upon his termination on November
16, 2017, and defendant's subsequent failure to reinstate
him. Doc. 1 at 3. But plaintiff does not show how the
four-year statute of limitations under Texas law for breach
of contract, Tex. Civ. Prac. & Rem. Code § 16.004,
would bar refiling of the breach-of-contract claim in the
future. That four-year period would appear to run well into
2021. Plaintiff gains no ground by citing Millian v. USAA
General Indemnity Co., 546 F.3d 321 (5th Cir. 2008),
where the parties “agree[d] that dismissal . . . will
likely have the effect of dismissal with prejudice” due
to a time bar. Id. at 328. Unlike there, defendant
here does not so agree. Doc. 12 at 4 n.1. And rightly so-as
just explained. Plaintiff's reliance on Millian
for a “heightened standard” used to assess a
potential dismissal (Doc. 7 at 3) appears unavailing.
Plaintiff also argues that a statute of limitations
“issue” would be raised in a refiled action
because 42 U.S.C. § 2000e- 5(f)(1) requires Title VII
claims to be fled within 90 days of receipt of an EEOC
right-to-sue letter. Ringgold v. Nat'l Maint.
Corp., 796 F.2d 769 (5th Cir. 1986). But plaintiff has
not shown why that limitations issue would not be already
raised in this action.
complaint alleges (Doc. 7 at 3) that plaintiff received an
EEOC right-to-sue letter on December 7, 2017. The 90th day
after December 7, 2017, was March 7, 2018. But the complaint
was not fled until March 8, 2018-one day after the 90th day.
The statutory 90-day time requirement “is strictly
construed.” Taylor v. Books A Million, Inc.,
296 F.3d 376, 379 (5th Cir. 2002). It therefore appears
likely that plaintiff's Title VII claims are already
time-barred. See Ringgold, 796 F.2d at 770
(affirming dismissal of Title VII ...