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Bradley v. American Electric Power

United States District Court, E.D. Texas

September 3, 2019

John W. Bradley, Plaintiff,
v.
American Electric Power, Defendant.

          Before Barker, District Judge

          ORDER

          J. CAMPBELL BARKER UNITED STATES DISTRICT JUDGE.

         Defendant's 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 directed below.

         1. 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.

         Because 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.

         2. 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.[1] The court thus analyzes whether plaintiff has justified such an extension.

         3. 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).

         4. 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.

         The 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.

         The 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).

         Plaintiff 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.

         a. 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.

         b. 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.

         The 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 ...


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