Boyd v. Koch Foods of Alabama, LLC et al
OPINION AND ORDER granting the plaintiff's oral motion to extend the time for service of process until November 21, 2011. Signed by Honorable Judge Myron H. Thompson on 12/8/2011. (br, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
KOCH FOODS OF ALABAMA, LLC,
CIVIL ACTION NO.
OPINION AND ORDER
Plaintiff Tina Boyd claims that defendant Koch Foods
of Alabama, LLC, engaged in employment discrimination in
violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., and Title I of the Civil
Rights Act of 1991, 42 U.S.C. § 1981, and committed
various state torts when it terminated her.
has jurisdiction under 28 U.S.C. §§ 1331 & 1367 (federal
question and supplemental).
This case is now before the
court on Boyd’s oral motion to extend the time for
service of process on Koch.
For the reasons that follow,
Boyd’s motion will be granted.
Initially proceeding pro se, Boyd filed her complaint
in the United States District Court for the Eastern
District of North Carolina.
The original complaint and
summons were served by certified mail to Koch’s corporate
However, the service was not directed at
any particular officer, agent, or individual.
Koch challenged the action on several grounds.
See Fed. R. Civ. P. 4(h)(1).
motion to dismiss was pending, Boyd moved to transfer the
case to this court, the United States District Court for
the Middle District of Alabama.
The transfer motion was
granted, and the motion to dismiss was left unresolved.
On September 23, 2011, after transfer of Boyd’s case
to this district, this court denied Koch’s dismissal
motion with leave to renew, noting that, “It appears that
informally at a status conference, the .... issues raised
by the motion.”
On October 26, 2011, Boyd, by then
represented by counsel, filed an amended complaint in
renewing its service-of-process challenge and noting that
the deadline had passed by which to complete service-ofprocess.
During a November 15, 2011, conference call, Boyd’s
counsel conceded that service of process was deficient
particular corporate agent. However, Boyd’s counsel made
an oral motion to correct service of process by November
21, an extension of approximately eleven months from the
By order entered on November 17, the
motion for submission on November 18, with parties to
file briefs by that date, and, second, denied Koch’s
renewed dismissal motion with leave to renew again after
resolution of Boyd’s oral extension motion.
November 21 deadline and corrected service of process.
As stated, this case is now before the court on
Boyd’s November 15 oral motion for extension of time.
Koch objects to the deadline extension.*
Standard for Extension of Time
Federal Rule of Civil Procedure 4(m) establishes a
deadline for service of process: 120 days after the
complaint is filed.
As her complaint was filed on August
*In an order entered on November 21, 2011, the court
required that Boyd “show cause, if any there b[e], in
writing by November 28, 2011, as to whether there is
‘good cause’ under Fed. R. Civ. P. 4(m) to extend the
service-of-process deadline ..., and why the motion to
dismiss on insufficiency of service-of-process grounds
filed by defendant Koch Foods of America, LLC (Doc. No.
38) should not be granted.”
The court incorrectly
treated Koch’s renewed dismissal motion as still pending.
The only pending motion going to issue of service of
process is Boyd’s November 15 oral extension motion; the
court was expressly seeking, with the November 21 order,
to find out if Boyd had “good cause” under Rule 4(m).
31, 2010, Boyd had until December 29, 2010, to serve
However, the 120-day window is not set in stone.
Under Rule 4(m), a district court may extend the serviceof-process deadline.
Rule 4(m) states, in pertinent part, that: “If a
complaint is filed, the court-–on motion or on its own
after notice to the plaintiff–-must dismiss the action
without prejudice against that defendant or order that
service be made within a specified time.
But if the
plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate
“If good cause is present, the district
court must extend time for service. If good cause does
not exist, the court may, in its discretion, decide
whether to dismiss the case without prejudice or extend
time for service.”
Thompson v. Brown, 91 F.3d 20, 21
(5th Cir. 1996) (emphasis in original).
The first step in the Rule 4(m) inquiry is to make a
good-cause determination, as a finding of good cause
mandates an extension of time.
Good cause under Rule
reliance on faulty advice, rather than inadvertence or
negligence, prevented service.”
Prisco v. Frank, 929
F.2d 603, 604 (11th Cir. 1991) (per curiam) superceded by
rule as stated in Horenkamp v. Van Winkle & Co., Inc.,
402 F.3d 1129, 1132 n.2 (11th Cir. 2005).
Thus, a simple
“mistake” in effectuating service of process is not “good
cause” under Rule 4(m).
Horenkamp, 402 F.3d at 1130.
But this does not end the analysis.
grants discretion to the district court to extend the
time for service of process even in the absence of a
showing of good cause.” Id. at 1132.
Circuit Court of Appeals has mandated that a district
court examine not only “good cause” arguments but also
whether “any other circumstances warrant an extension of
time based on the facts of the case” before denying or
granting an extension.
Lepone-Dempsey v. Carroll County
Comm’rs, 476 F.3d 1277, 1282 (11th Cir. 2007).
proceeding pro se, see Fed. R. Civ. P. 4 Advisory Comm.
limitations would bar the refiled action.”
Potter, 185 F. App’x 853, 854 (11th Cir. 2006) (per
Koch objects to Boyd’s motion for extension of time,
citing cases where the district court, in its discretion,
Koch asserts that Boyd has not shown any good
cause for an extension.
Koch also notes that, while
Boyd’s Title VII claims are likely time-barred, she could
re-file her § 1981 claim, which has a four-year statute
extending the deadline was that the case proceeded pro se
until October 2011.
Boyd further submits that Koch has
process, as it has long had notice of the claims against
Here, the court cannot find “good cause” to extend
summons and complaint to an appropriate Koch corporate
officer is a mistake.
Because Boyd cannot rely on an
“outside factor” to explain her failure to follow the
service-of-process requirements, there is no good cause
to extend the Rule 4(m) deadline.
Prisco, 929 F.2d at
Nevertheless, the court has discretionary authority
to grant an extension of time.
Several factors warrant
First, Boyd filed this case pro se and only retained
counsel in October 2011.
The vast majority of the delay
is attributable to a pro se litigant not understanding
the intricacies of the federal rules and to whom to
Protections for pro se litigants are
embedded in Rule 4.
The Advisory Committee Notes give
the example of a delay caused by a pro se litigant’s in
forma pauperis petition as a reason for extending time.
See Fed. R. Civ. P. 4 Comm. Notes 1993. “Although not
binding, the interpretations in the Advisory Committee
Notes ‘are nearly universally accorded great weight in
interpreting federal rules.’” Horenkamp, 402 F.3d at 1132
(quoting Vergis v. Grand Victoria Casino & Resort, 199
F.R.D. 216 (S.D. Ohio 2000)).
The Committee Notes,
promptly once represented by counsel.
Within six weeks
of retaining counsel, Boyd properly served Koch.
Third, Koch was on notice of the case against it.
Indeed, Koch was fully informed of Boyd’s claims, entered
an appearance, and filed numerous motions.
Cf. Jordan v.
claim any prejudice from Boyd’s error.
United States, 694 F.2d 833, 836 (D.C. Cir. 1982) (per
curiam) (noting that dismissal is disfavored when the
“necessary parties in the government have actual notice
of a suit, suffer no prejudice from a technical defect in
failure to serve properly”).
Fourth, Boyd’s Title VII claims are likely time
barred if the complaint is dismissed.
A plaintiff must
Santini v. Cleveland Clinic Fla.,
232 F.3d 823, 825 (11th Cir. 2000) (per curiam).
time period has clearly passed.
Accordingly, the court
may take this factor into consideration when granting an
extension under Rule 4(m).
See Boston, 185 F. App’x at
854; Fed. R. Civ. P. 4 Advisory Comm. Notes 1993 (noting
that “relief may be justified ... if the applicable
statute of limitations would bar the refiled action”).
The court, therefore, will exercise its discretionary
authority under Rule 4(m) by extending the deadline for
service-of-process to November 21, 2011.
Accordingly, it is ORDERED that plaintiff Tina Boyd’s
motion, orally made on November 15, 2011, to extend the
time for service of process until November 21, 2011, is
DONE, this the 8th day of December, 2011.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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