Todd v. City of LaFayette, Alabama et al

Filing 102

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

MERRILL TODD,

)
)
Plaintiff,
)
)
v.
)
)
CITY OF LAFAYETTE, et al., )
)
Defendants.
)

CIVIL ACTION NO.
3:12cv589-MHT
(WO)

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,
Terry

Woods,

capacities.
Bailey,

and

Steve

Smith,

in

their

individual

The first count in his lawsuit contends that

Clark,

Woods,

and

Smith

violated

his

constitutional rights by using excessive force against
him; the second count asserts that the City of LaFayette
violated his constitutional rights by negligently hiring,
retaining,

and

failing

to

supervise

the

four

police

officers; and the final count is a state-law battery
claim against the four police officers.

Jurisdiction for

the federal claims is proper under 28 U.S.C. §§ 1331
(federal

question)

state-law

claim

is

and

1343

(civil

properly

rights),

before

the

and

court

the

under

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
was

not

served.*

timely

For

reasons

that

will

be

discussed, the motion will be denied and the time for
service extended.

I.

Procedural History

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
County

Jail,

on

July

7,

2012.

An

employee

of

the

Chambers County Jail accepted service on Clark’s behalf,
but

on

August

8,

2012,

the

Chambers

County

Sheriff

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.
2

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.

Personal service

was made on Clark in Wedowee, Alabama at the Randolph
County Jail.

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
LaFayette.

II.

Standard for Extension of Time

A plaintiff must serve process on a defendant “within
120 days after the complaint is filed.”
4(m).

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
dismiss

the

action

without

3

prejudice

against

the

defendant

or

order

specified time.”

Id.

that

service

be

made

within

a

“But if the plaintiff shows good

cause for the failure, the court must extend the time for
service

for

an

appropriate

period.”

Id.

However,

“[e]ven in the absence of good cause, a district court
has the discretion to extend the time for service of
process.”

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
cause[,]

...

the

district

court

must

still

consider

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.”

Id.

Thus, “Rule 4(m) has mandatory and discretionary
components.”

Boyd v. Koch Foods of Alabama, LLC,

WL 6141064, *2 (M.D. Ala. 2011) (Thompson, J.).

4

2011

“If good

cause is present, the district court must extend time for
service.
its

If good cause does not exist, the court may, in

discretion,

decide

whether

to

dismiss

without prejudice or extend time for service.”

the

case

Thompson

v. Brown, 91 F.3d 20, 21 (5th Cir. 1996) (emphasis in
original).
Though the Federal Rules of Civil Procedure do not
define

“good

Appeals

has

cause,”

the

explained

Eleventh

that

mere

Circuit

Court

of

“inadvertence

or

negligence” does not amount to good cause.

Lepone-

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)).
Rather,

good

cause

“exists

‘only

when

some

outside

factor[,] such as reliance on faulty advice,’” is to
blame.

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

5

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
the

plaintiff

from

defendant

evaded

attempted

service,

proceeding pro se.

refiling

service
and

or

the

suit,

concealed

whether

the

whether
a

the

defect

in

plaintiff

is

Lepone-Dempsey, 476 F.3d at 1282;

Boyd, 2011 WL 6141064 at *2; Fed. R. Civ. P. 4(m),
Advisory Committee Note, 1993 Amendments.

III.

Discussion

Todd asks the court to extend the time for service
and deny Clark’s motion to dismiss.

Alternatively, he

argues that the 120 days should not start until the date

6

he filed the amended complaint (August 30, 2012), making
his service of Clark timely.
As a preliminary matter, Todd’s assertion that the
120

days

did

not

begin

complaint lacks merit.

until

he

filed

the

amended

Todd named Clark in the original

complaint; his doing so started the 120-day clock.

See

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)).

To hold

otherwise

endless

would

motivate

plaintiffs

to

file

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.
extension,

he

explains

that

after

In support of an

learning

Clark

no

longer worked for the Chambers County Sheriff, Todd hired
three different private investigators to locate and serve

7

Clark.

The first private investigator failed to find

Clark.

The next two tracked him through four different

counties

before

finally

finding

and

serving

him

in

Randolph County.
Todd

also

asked

the

city

of

LaFayette,

his

co-

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
finds

Todd

service.

has

been

diligent

in

attempting

to

make

His lack of success does not appear rooted in

mistake or negligence, but in an outside factor.

Todd

attempted to serve Clark the day after he filed this
complaint.

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
address.

More importantly, once Todd realized that Clark

8

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
court

must

extend

“appropriate period.”

the

time

for

service

Fed. R. Civ. P. 4(m).

for

an

In this

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
service.

The circumstances here are similar to the

circumstances in Horenkamp, which the Eleventh Circuit
found warranted discretionary extension.
1130.

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.

By

that time, the 120 days had already expired, but the

9

plaintiff
month.

mistakenly
The

court

believed
of

she

appeals

still

affirmed

had
the

another
district

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.

See

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
personal-injury actions).
Rule

of

without

Civil

Procedure

prejudice

for

Therefore, although Federal
4(m)
failure

contemplates
to

dismissal

timely

serve

a

complaint, the dismissal of this claim would effectively
be a dismissal with prejudice.
whether

Clark

had

notice

10

of

Although it is unclear
the

lawsuit,

he

is

represented by the same attorneys who represent his codefendants;

his

attorneys,

at

least,

have

thus

been

involved in the litigation from its inception.

And

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
litigation.
Nor is the length of the delay in this case so
egregious

as

to

accommodate it.

militate

against

an

extension

to

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.

The

prejudice

co-

he

complains

of

occurred

because

his

defendants went forward with the case without him; a

11

common occurrence in multi-party litigation.
procedural

mechanisms

to

rectify

this

There are

disadvantage.

Clark could, for instance, move to enlarge the scheduling
order and conduct further discovery.
***
Accordingly,

it

is

ORDERED

that

defendant

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

Larry