Todd v. City of LaFayette, Alabama et al
OPINION AND ORDER directing that defendant Larry Clark's 65 motion to dismiss is denied, as further set out. Signed by Honorable Judge Myron H. Thompson on 9/23/13. (scn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
CITY OF LAFAYETTE, et al., )
CIVIL ACTION NO.
OPINION AND ORDER
Relying on 42 U.S.C. § 1983, plaintiff Merrill Todd
brings this lawsuit naming as defendants the City of
LaFayette and police officers Jerome Bailey, Larry Clark,
The first count in his lawsuit contends that
constitutional rights by using excessive force against
him; the second count asserts that the City of LaFayette
violated his constitutional rights by negligently hiring,
officers; and the final count is a state-law battery
claim against the four police officers.
the federal claims is proper under 28 U.S.C. §§ 1331
supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
This case is currently before the court on Clark’s
motion to dismiss Todd’s claims on the ground that Clark
discussed, the motion will be denied and the time for
Todd named defendant Larry Clark in his original
complaint filed July 6, 2012.
He attempted service on
Clark at his last known place of employment, the Chambers
Chambers County Jail accepted service on Clark’s behalf,
notified Todd that Clark did not work at the jail anymore
Clark’s motion also seeks summary judgment on all
claims; this will be addressed in a later opinion.
and that the jail was not, therefore, authorized to
accept service for him.
At a conference call with the
court on August 13, 2012, Todd acknowledged that service
had not been made on Clark and expressed his intent to
work diligently to serve him with the complaint.
Clark was served on December 14, 2012; 161 days after
Todd filed the complaint against him.
was made on Clark in Wedowee, Alabama at the Randolph
Clark has now entered an appearance in this
case and is represented by the same counsel who represent
co-defendants Jerome Bailey, Steve Smith, and the city of
Standard for Extension of Time
A plaintiff must serve process on a defendant “within
120 days after the complaint is filed.”
Fed. R. Civ. P.
If the plaintiff fails to do so, “the court--on
motion or on its own after notice to the defendant--must
“But if the plaintiff shows good
cause for the failure, the court must extend the time for
“[e]ven in the absence of good cause, a district court
has the discretion to extend the time for service of
Lepone-Dempsey v. Carroll County Comm'rs, 476
F.3d 1277, 1281 (11th Cir. 2007).
Indeed, “when a
district court finds that a plaintiff fails to show good
whether any other circumstances warrant an extension of
time based on the facts of the case.”
Id. at 1282.
“Only after considering whether any such factors exist
may the district court exercise its discretion and either
dismiss the case without prejudice or direct that service
be effected within a specified time.”
Thus, “Rule 4(m) has mandatory and discretionary
Boyd v. Koch Foods of Alabama, LLC,
WL 6141064, *2 (M.D. Ala. 2011) (Thompson, J.).
cause is present, the district court must extend time for
If good cause does not exist, the court may, in
without prejudice or extend time for service.”
v. Brown, 91 F.3d 20, 21 (5th Cir. 1996) (emphasis in
Though the Federal Rules of Civil Procedure do not
negligence” does not amount to good cause.
Dempsey, 476 F.3d at 1281 (quoting Prisco v. Frank, 929
F.2d 603, 604 (11th Cir. 1991) (per curiam), superseded
in part by rule as stated in Horenkamp v. Van Winkle and
Co., Inc., 402 F.3d 1129, 1332 n.2 (11th Cir. 2005)).
factor[,] such as reliance on faulty advice,’” is to
Id. (alteration in original) (quoting Prisco, 929
F.2d at 604.).
Therefore, a plaintiff demonstrating good
cause for his or her delay must show he or she “(1) has
proceeded in good faith; (2) has a reasonable basis for
noncompliance and (3) the basis for the delay was more
than simple inadvertence or mistake.”
Durgin v. Mon, 659
F. Supp. 2d 1240, 1258 (S.D. Fla. 2009) (Marra, J.).
Absent good cause, relevant circumstances that will
inform the court’s exercise of its discretion include
whether the applicable statute of limitations would bar
proceeding pro se.
Lepone-Dempsey, 476 F.3d at 1282;
Boyd, 2011 WL 6141064 at *2; Fed. R. Civ. P. 4(m),
Advisory Committee Note, 1993 Amendments.
Todd asks the court to extend the time for service
and deny Clark’s motion to dismiss.
argues that the 120 days should not start until the date
he filed the amended complaint (August 30, 2012), making
his service of Clark timely.
As a preliminary matter, Todd’s assertion that the
complaint lacks merit.
Todd named Clark in the original
complaint; his doing so started the 120-day clock.
Lindley v. City of Birmingham, Ala., 452 Fed. Appx. 878,
880 (11th Cir. 2011) (“[W]hen an amended complaint names
a new defendant, a plaintiff has 120 days from the date
on which the amended complaint is filed to serve that
defendant with process.” (emphasis added)).
amendments for the purpose of giving themselves more time
to make service.
Todd must, therefore, demonstrate that an extension
of the time for service is warranted.
In support of an
longer worked for the Chambers County Sheriff, Todd hired
three different private investigators to locate and serve
The first private investigator failed to find
The next two tracked him through four different
defendant and employer at the time of the incident, to
give him Clark’s address.
The city did not do so until
after the 120-day window lapsed.
Moreover, Clark was not
found at that address.
Upon consideration of these circumstances, the court
His lack of success does not appear rooted in
mistake or negligence, but in an outside factor.
attempted to serve Clark the day after he filed this
He cannot be faulted for the fact that Clark
moved and changed jobs, apparently multiple times, over
the past two years.
This is particularly true because
Clark’s former employee did not even have his current
More importantly, once Todd realized that Clark
could not be served at the Chambers County Jail, he hired
three different private investigators to locate Clark.
The court thus concludes that Todd had good cause for
failing to serve Clark in the time allotted, and the
Fed. R. Civ. P. 4(m).
case, “an appropriate period” requires a 41-day extension
to accommodate the delay.
Even were the court to conclude that good cause
within the meaning of Rule 4(m) is lacking, the court
would still use its discretion to extend the time for
The circumstances here are similar to the
circumstances in Horenkamp, which the Eleventh Circuit
found warranted discretionary extension.
402 F.3d 1129,
The plaintiff in that case mailed the defendant a
request for waiver of service which the defendant did not
return; the plaintiff waited four months before sending
the defendant a second request for waiver of service.
that time, the 120 days had already expired, but the
court’s discretionary extension of the time for service,
noting that the statute of limitations would now bar the
plaintiff from pursuing her suit, that the defendant had
notice of the suit, and had now been properly served.
Id. at 1133.
As in Horenkamp, the statute of limitations now bars
Todd from refiling his § 1983 claim against Clark.
Owens v. Okure, 488 U.S. 235 (1989) (holding that § 1983
claims look to the general state-law limitations statute
for personal injury actions); 1975 Ala. Code § 6-2-38(l)
(providing for a two-year statute of limitations for
Therefore, although Federal
complaint, the dismissal of this claim would effectively
be a dismissal with prejudice.
Although it is unclear
represented by the same attorneys who represent his codefendants;
involved in the litigation from its inception.
unlike the plaintiff in Horenkamp, Todd hired private
investigators to find Clark and personally serve him,
rather than relying on the defendant to waive service.
Finally, Clark has now been served and has joined the
Nor is the length of the delay in this case so
Clark was served 41 days after he should
have been; a week and a half longer than the delay the
Eleventh Circuit approved in Horenkamp.
Id. at 1130.
Though Clark complains he was prejudiced by the delay
because he could not participate in discovery, he would
have had to move to extend the time for discovery even if
he was served at the tail end of the 120-day window.
defendants went forward with the case without him; a
common occurrence in multi-party litigation.
Clark could, for instance, move to enlarge the scheduling
order and conduct further discovery.
Clark’s motion to dismiss (Doc. No. 65) is denied.
DONE, this the 23rd day of September, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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