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Garett v. BBVA Compass Bank

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

December 2, 2019

WANDA GARETT, and JANE RUNNELLS, Plaintiffs,
v.
BBVA COMPASS BANK, et al., Defendants.

         Referred to U.S. Magistrate Judge [1]

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE

         Based on the relevant filings and applicable law, the case should be DISMISSED for failure to serve the defendants within 90 days.

         I. BACKGROUND

         On June 24, 2019, the plaintiffs filed this pro se case against the defendants and paid the filing fee. (See doc. 3, receipt number DS117081.) Their statement of the claim simply states, “This case involves housing discrimination and breach of contract.” (See doc. 3 at 7.)[2] By order dated June 25, 2019, they were expressly advised of their duty to timely serve the defendants:

Because they paid the fee, the plaintiffs are now responsible for serving each defendant with a summons and a copy of the complaint in this case as provided by Rule 4(c) of the Federal Rules of Civil Procedure. If each defendant is not served within 90 days after the filing of the complaint, the action is subject to dismissal without prejudice. See Fed. R. Civ. P. 4(m). In addition, Fed.R.Civ.P. 4(1)(1) requires Plaintiffs to file proof of service with the Court unless service is waived. This proof must consist of “the server's affidavit” if service was not effected by the United States Marshal or a deputy marshal. Id. If the plaintiffs do not file a valid return of service or otherwise show that each defendant was properly served, this action may be dismissed.

(See doc. 5.) The order also directed the clerk to mail the plaintiffs summons forms and a copy of Rule 4 of the Federal Rules of Civil Procedure. (Id.) The docket reflects that a summons form was served with the order as well as a copy of Rule 4. (See id.)

         The plaintiffs failed to file a valid return of service on the defendants within 90 days of the filing of the complaint. By order dated October 21, 2019, they were directed to either file a valid return of service, or show cause in writing why service could not be made on the defendants, no later than November 4, 2019. (See doc. 13.) The order expressly stated that if the plaintiffs failed to comply with the order, dismissal of the case would be recommended without further notice. On November 4, 2019, the plaintiffs filed responses simply stating that they “never received subpoena's for this case.” (See docs. 13, 14.)

         By order dated November 6, 2019, the Court found that the plaintiffs' responses reflected no effort by them to comply with the order to show cause, such as by contacting the Clerk's Office to request summons forms, and no reason why this case should not be dismissed for failure to serve the defendants. (See doc. 16 at 2.) Although it found that this action was subject to dismissal for failure to file a valid return of service under Fed.R.Civ.P. 4(m), it nevertheless provided the plaintiffs another opportunity to serve the defendants. It ordered them to file a valid return of service, or show good cause in writing why service could not be made on each defendant, no later than 5:00 p.m. on November 18, 2019. It also directed the Clerk's Office to mail the plaintiffs a summons form for each defendant and another copy of Rule 4, and the docket reflects that they were mailed to the plaintiffs. (See docs. 16, 17.)

         On November 20, 2019, the plaintiffs filed a return of service as to only three of the five defendants, and each return indicated that one of the plaintiffs had personally mailed the summonses to those three defendants via certified mail, return receipt requested, on November 15, 2019. (See doc. 18.) As of this date, the plaintiffs have still not filed any return of service as to the other two defendants, Ray McDonald, and Charles C. Guimm, III, or shown cause in writing for their failure to do so.

         II. ANALYSIS

         Because they paid the fee, the plaintiffs were responsible for serving each defendant with a summons and a copy of the complaint case as provided by Rule 4(c) of the Federal Rules of Civil Procedure. They were required to make proper service on the defendants within 90 days of filing a complaint. See Fed. R. Civ. P. 4(m). They were also required to file proof of service unless service was waived. See Fed. R. Civ. P. 4(1)(1). Proof consists of “the server's affidavit” if service was not effected by the United States Marshal or a deputy marshal. Id.

         Where proper service is not made within 90 days of filing a complaint, an action is subject to sua sponte dismissal, without prejudice. Fed.R.Civ.P. 4(m). Dismissal is not proper “if the plaintiff shows good cause for the failure” to properly effect service, however. Id. In the Fifth Circuit, courts must allow additional time for service if a plaintiff can establish good cause. Millan v. USAA General Indem. Co., 546 F.3d 321, 325-26 (5th Cir. 2008)(citing Thompson v. Brown, 91 F.3d 20, 21 (5th Cir.1996)). “To establish ‘good cause' the plaintiff must demonstrate at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually do not suffice.” Lindsey v. U.S. R.R. Retirement Bd., 101 F.3d 444, 446 (5th Cir. 1996) (quoting Peters v. U.S., 9 F.3d 344, 345 (5th Cir. 1993)). Courts also typically require “some showing of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified.” Lambert v. United States, 44 F.3d 296, 299 (5th Cir.1995). The plaintiff bears the burden of showing good cause. Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988).

         Even if the plaintiff fails to show good cause, a court has discretionary power to extend the time for service instead of dismissing the case without prejudice. Millan v. USAA General Indem. Co., 546 F.3d at 325; Thompson, 91 F.3d at 21. Exercise of this discretionary power may be warranted, “‘for example, if the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or ...


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