Jerkins v. Baldwin County Sheriff et al

Filing 4

Order giving plaintiff until 7/8/2015 to perfect service & to file proof of service. Signed by Chief Judge William H. Steele on 6/4/2015. Copy mailed to Plaintiff. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
STEPHEN JERKINS,
)
)
Plaintiff,
)
)
v.
) CIVIL ACTION 14-0600-WS-M
)
BALDWIN COUNTY SHERIFF, et al., )
)
Defendants.
)
ORDER
The complaint was filed December 30, 2014. (Doc. 1). The file does not
reflect that the plaintiff has perfected service or even sought the issuance of
summons.
If a defendant is not served within 120 days after the
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 period.
Fed. R. Civ. P. 4(m).
The plaintiff’s failure to perfect service within 120 days after filing the
complaint exposes his action to dismissal without prejudice unless he shows “good
cause” for his failure. Good cause exists “only when some outside factor such as
reliance on faulty advice, rather than inadvertence or negligence, prevented
service.” Prisco v. Frank, 929 F.2d 603, 604 (11th Cir. 1991).
Absent good cause, the Court may, but need not, allow additional time.
Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1132 (11th Cir. 2005); accord
Lepone-Dempsey v. Carroll County Commissioners, 476 F.3d 1277, 1281-82 (11th
Cir. 2007). In determining whether to exercise its discretion to extend the time for
service despite the lack of good cause, a court considers whether the defendant is
evading service, whether it is concealing defects in service, and whether the statute

of limitations will bar the re-filing of the lawsuit should it be dismissed.
Horenkamp, 402 F.3d at 1132. This is “not an exhaustive list” of factors a court
may consider. Lepone-Dempsey, 476 F.3d at 1182.
The Court, recounting the foregoing history and legal principles, ordered
the plaintiff to show cause why this action should not be dismissed without
prejudice under Rule 4(m). (Doc. 3). The plaintiff has filed nothing in response.
He has therefore failed to show good cause under Rule 4(m). Whether to permit
the plaintiff additional time to perfect service is thus committed to the Court’s
discretion.
Because the plaintiff has not responded to the Court’s show-cause order,
the Court has no evidence the defendants are evading service or concealing defects
in service. However, the Court notes that, should the plaintiff’s action be
dismissed, the applicable statutes of limitations may bar any attempt to file a new
action.1 Although “the running of the statute of limitations does not require that a
district court extend the time for service of process,” Horenkamp, 402 F.3d at
1133, the Court in its discretion allows the plaintiff additional time to perfect
service. The plaintiff is given until July 8, 2015 to perfect service and to file
proof of service. In the absence of satisfactory proof of service or a motion
seeking additional time and an explanation why it is warranted, on July 8, 2015 the
Court will, without further notice, dismiss this action without prejudice.
DONE and ORDERED this 4th day of June, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
1

The plaintiff asserts claims under the Family and Medical Leave Act, Title II of
the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act. The
limitations period under each of these provisions is two years. 29 U.S.C. § 2617(c)(1)
(FMLA); Horsley v. University of Alabama, 564 Fed. Appx. 1006, 1007 (11th Cir. 2014)
(ADA and Rehabilitation Act). The complaint reflects that all discriminatory and/or
retaliatory actions occurred between December 2012 and January 2013. Thus, it appears
the plaintiff’s claims would be subject to a limitations defense were this action to be
dismissed and the plaintiff to file a new action.
2