Taylor v. Alorica, Inc.
Order granted in part 13 MOTION for Extension of Time filed by Coretta E. Taylor. Plaintiff is ordered to show proof of service on the defendant by 12/7/2015. Signed by Chief Judge William H. Steele on 11/6/2015. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CORETTA E. TAYLOR,
) CIVIL ACTION 15-0302-WS-C
This matter is before the Court on the plaintiff’s motion for extension of
time. (Doc. 13). Upon consideration, the Court concludes the motion is due to be
granted in part.
The complaint was filed on June 9, 2015, and the defendant has yet to be
served. The plaintiff’s failure to perfect service within 120 days after filing the
complaint exposes her action to dismissal without prejudice under Federal Rule of
Civil Procedure 4(m). However, “if the plaintiff shows good cause for the failure,
the court must extend the time for service for an appropriate period.” Id.
The Court ordered the plaintiff to show cause why this action should not be
dismissed under Rule 4(m), (Doc. 12), and the instant motion followed. The
plaintiff states that her original attorney did not seek issuance of summons until
August 25, 2015 and that he withdrew in favor of present counsel on September
29, 2015. (Doc. 13). 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). In particular,
“inadvertence of [the] attorney” does not constitute good cause. Anderson v. Iron
Will, Inc., 2008 WL 2157145 at *2 (S.D. Ala. 2008) (internal quotes omitted).
Because the plaintiff has shown only counsel’s inadvertence, she has not shown
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. Since the plaintiff states that the defendant “has no
current knowledge of the lawsuit pending against it,” (Doc. 13 at 1), the first two
of these factors cannot favor an extension of time.
The plaintiff brings claims for discrimination, retaliation and failure to
accommodate under the Americans with Disability Act, as well as a claim under
the Family and Medical Leave Act (“FMLA”) and a claim for breach of contract.
(Doc. 1). The FMLA claim challenges the plaintiff’s termination in February
2015; the breach of contract claim challenges the failure to pay the plaintiff her
final paycheck in or after February 2015. (Id. at 12, 16-17). The statute of
limitations would not bar the re-filing of these claims should the action be
dismissed under Rule 4(m).1 However, the ADA claims, since they must be
brought within 90 days after receipt of a right-to-sue letter, might be subject to a
limitations defense if this action is dismissed.2 The Court therefore in its
discretion will afford the plaintiff additional time within which to effect service of
The plaintiff asks for an additional 60 days in which to effect service of
process. (Doc. 13 at 2). The Court cannot perceive why such an extended period
is required; a one-minute search of the Alabama Secretary of State’s online
records reveals the identity and address of the defendant’s registered agent.
The FMLA statute of limitations is two years. 29 U.S.C. § 2617(c)(1). The
Alabama statute of limitations for a breach of contract claim is six years. Ala. Code § -.
The right-to-sue letter is dated March 11, 2015. (Doc. 6-1).
For the reasons set forth above, the motion for extension of time is granted
in part. The plaintiff is ordered to file, on or before December 7, 2015, proof of
service on the defendant, failing which this action will be dismissed without
prejudice pursuant to Rule 4(m) without further notice. To the extent the plaintiff
seeks other or additional relief, her motion is denied.
DONE and ORDERED this 6th day of November, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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