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 previously adopted the
report's conclusion that plaintiff failed to show good
cause supporting a mandatory extension of the deadline for
service of process. Doc. 24. As to the question whether a
discretionary extension is warranted, the court reserved
judgment and ordered further briefing because it appeared
from the pleading that denying an extension would not work
prejudice in the form of occasioning a new time-bar defense.
has now amended his complaint to state that he received his
EEOC right-to-sue letter on December 12, 2017, as opposed to
the December 7, 2017 date of receipt alleged in his original
complaint. Doc. 25. Accordingly, the 90-day time bar no
longer appears applicable from the face of the complaint,
although defendant states an intent to dispute the pleaded
facts. The 90-day time bar would apply if plaintiff were to
refile this action after a Rule 4(m) dismissal, due to the
intervening lapse of time. The court assigns that consequence
significant weight in favor of a discretionary extension.
That weight is tempered here somewhat because, as defendant
notes, dismissal would not occasion a time bar to the entire
action if refiled, but rather only the Title VII claims.
factors cut against a discretionary extension. First,
plaintiff does not claim that defendant was “evading
service or conceal[ing] a defect in attempted service,
” as might justify an extension. Fed.R.Civ.P. 4(m) adv.
comm. note (1993).
it took over eight months for plaintiff to serve process, and
no effort at service was made in that time. Cf. Gartin v.
Par Pharmaceutical Companies, Inc., 561 F.Supp.2d 670
(E.D. Tex. 2007), aff'd, 289 Fed. App'x 688
(5th Cir. 2008) (unpublished) (entering Rule 4(m) dismissal
after seven months of total inactivity).
although plaintiff initially fled this suit pro se, plaintiff
is now represented but fails to offer any evidence of when
before his counsel's June 22, 2018 appearance plaintiff
formed an attorney-client relationship with his counsel. That
makes it difficult to assess the weight to attach to
plaintiff's initial pro se fling status. And even
“[p]ro se status does not excuse a litigant's
complete failure to effect service.” Sys. Signs
Supplies v. Dep't of Justice, 903 F.2d 1011, 1013
(5th Cir. 1990).
even after counsel appeared, service was delayed for four and
a half more months without any attempts at service.
Plaintiff's counsel mentions health issues and the need
to investigate his client's case. But the court gives
those concerns reduced weight because plaintiff's counsel
offers few specifics, such as when the health issues abated,
the length of a reasonable investigation, or why the case
could not be referred to other counsel if current counsel
could not comply with the federal rules.
timely service of process is important. The general open-door
policy of the federal rules is balanced by Rule 4's
specific requirement of timely service of process and the
interests protected by that rule. Service of the complaint
puts a defendant on notice to gather facts for a defense when
memories, records, and other evidence might otherwise fade
away. Timely service of process can thus safeguard a
defendant's right to present a defense and promote the
speedy administration of justice encouraged by federal rules.
Fed.R.Civ.P. 1. See generally Veazey v. Young's Yacht
Sale & Service, Inc., 644 F.2d 475, 478 (5th Cir.
Unit A 1981) (noting that the timely-service-of-process
requirement promotes the same interests as do statutes of
limitations). That consideration would have more weight here,
and perhaps have led to denying an extension, if defendant
had argued potential prejudice to its ability to present a
defense. Defendant's motion papers, however, make no such
argument. Promoting respect for the federal rules'
service-of-process requirements is important. But that can be
accomplished here by the monetary sanction ordered below.
those considerations, the court is persuaded to enter a
discretionary extension of the service deadline to 243-days
after the complaint was fled, as to retroactively make
service of process timely. The court thus
overrules defendant's objections and
adopts the magistrate judge's
recommendation to deny the motion to dismiss.
extension cures plaintiff's past noncompliance with Rule
4's timing requirement. But it does not erase it. Because
plaintiff's noncompliance with that rule was without good
cause and has not been otherwise persuasively justified, as
noted above, the court adopts the magistrate
judge's recommendation, to which plaintiff fled no
objection, to sanction plaintiff's noncompliance with
Rule 4 by ordering plaintiff to pay defendant's
reasonable attorney's fees and costs associated with the
fling and briefing of its motion to dismiss.
court denies defendant's motion to
dismiss (Doc. 6). As a sanction for plaintiff' past
noncompliance with Rule 4's requirements, the court
orders plaintiff to pay defendant's