Gaither v. Arkansas Foundation for Medical Care

Filing 16

ORDER granting def's motion to quash and denying deft's 13 Motion to Dismiss. The Court will allow pltf an additional 30 days in which to perfect service on the deft. The service attempted by mail to John Clayborn is hereby deemed insufficient and is quashed. Signed by Judge James M. Moody on 1/18/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
CLARA C. GAITHER
VS.

PLAINTIFF
4:11CV00576

ARKANSAS FOUNDATION FOR MEDICAL CARE

DEFENDANT

ORDER
Pending are Defendant’s motion to dismiss, or in the alternative, motion to quash, docket #
13 and Plaintiff’s motion to not dismiss and motion to not quash, docket # 15, which the Court will
interpret as a response to Defendant’s motion. For the reasons stated below, Defendant’s motion
to dismiss is denied, Defendant’s motion to quash is granted.
On July 20, 2011 Plaintiff filed her pro se complaint against the Arkansas Foundation for
Medical Care pursuant to Title VII of the Civil Rights Act of 1964, as amended. Plaintiff asked the
Court to grant her leave to proceed in forma pauperis. On July 21, 2011 the Court denied Plaintiff’s
motion to proceed in forma pauperis, finding that based on her earnings she was not entitled to be
treated as indigent. Plaintiff paid her filing fee in full on August 19, 2011.
Defendant filed its motion to dismiss on December 22, 2011 claiming that Plaintiff failed to
serve the Defendant until December 14, 2011, more than 120 days after the Complaint was filed and
failed to serve the Defendant’s registered agent for service. Plaintiff states that she calculated the
120 days from the date on which she paid her filing fee. Further, Plaintiff claims that she has
contacted legal counsel who will enter an appearance if her Complaint survives Defendant’s motion
to dismiss.
Because Plaintiff is proceeding pro se and has provided the Court with reasonable

justification for failing to serve the complaint within 120 days of filing, the Court will allow the
Plaintiff an additional thirty (30) days in which to perfect service on the Defendant. The service
attempted by mail to John Clayborn at the Defendant’s office is hereby deemed insufficient and is
quashed.
Plaintiff is directed to serve the Defendant as required by the Federal Rules of Civil
Procedure within thirty (30) days of the entry of this order. Failure to do so will result in the
dismissal of Plaintiff’s Complaint.
IT IS SO ORDERED this 18th day of January, 2012.

_____________________________________
James M. Moody
United States District Judge