Mazora v. Arkansas Department of Human Services

Filing 22

ORDER denying 21 Objection and motion for entry of default filed by Arkansas Department of Human Services and granting plaintiff's 19 renewed request for appointment of counsel. Plaintiff shall have until 1/21/14 to serve ADHS with process. Signed by Judge Kristine G. Baker on 11/19/13. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
TONYA MAZORA
v.

PLAINTIFF
No. 4:12-cv-00801 KGB

ARKANSAS DEPARTMENT OF HUMAN SERVICES

DEFENDANT

ORDER
Before the Court is a notice regarding service filed by plaintiff Tonya Mazora (Dkt. No.
16). Defendant Arkansas Department of Human Services (“ADHS”) responded by filing an
objection to service seeking dismissal of Ms. Mazora’s complaint for failure to perfect timely
service of process (Dkt. No. 18). Ms. Mazora filed a response to ADHS’s objection in which she
renews her request for counsel (Dkt. No. 19). Ms. Mazora sent this letter to defendant’s counsel,
Carmen Mosley-Sims, via certified mail (Dkt. No. 20). ADHS responded by filing a second
objection to service requesting the Court to dismiss this case or, in the alternative, to require
plaintiff to perfect service as required by the Federal Rules of Civil Procedure (Dkt. No. 21).
The Court will treat plaintiff’s notice regarding service as a motion for clerk’s default pursuant to
Rule 55(a) of the Federal Rules of Civil Procedure. For the reasons that follow, the motion for
entry of default is denied, and Ms. Mazora shall have until January 21, 2014, to serve ADHS
with process. Ms. Mazora’s renewed request for counsel is granted.
I.

Entry of Default

Federal Rule of Civil Procedure 55(a) provides: “When a party against whom a judgment
for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown
by affidavit or otherwise, the clerk must enter the party’s default.” However, “a defendant is
under no duty to respond to the rules of a court unless he is brought under its jurisdiction through

the proper service of process.” Diamond Bear Brewing Co. v. Stromberg Tanks Int’l, Inc., 2010
WL 1417001, at *2 (E.D. Ark. Jan. 16, 2009) (quoting Norsyn, Inc. v. Desai, 351 F.3d 825, 829
(8th Cir. 2003)). A defendant therefore cannot be held in default for failure to answer until
properly served. Id.
Rule 4(j)(2) of the Federal Rules of Civil Procedure provides in pertinent part:
A state, a municipal corporation, or any other state-created governmental
organization that is subject to suit must be served by:
(A)

delivering a copy of the summons and of the complaint to its chief
executive officer; or

(B)

serving a copy of each in the manner prescribed by that state’s law for
serving a summons or like process on such a defendant.

Under Arkansas law, service may be had on a state or municipal corporation or other
governmental organization, subject to suit, by delivering a copy of the summons and complaint
to the chief executive officer thereof, or other person designated by appointment or by statute to
receive such service. Ark. R. Civ. P. 4(d)(7). Alternatively, service may be made by any form
of mail addressed to the person to be served with a return receipt requested and delivery
restricted to the addressee or the agent of the addressee. Ark. R. Civ. P. 4(d)(8)(A)(i). The
addressee must be a natural person specified by name, and the agent of the addressee must be
authorized in accordance with U.S. Postal Service regulations. Id. However, service on the
registered agent of a corporation or other organization may be made by certified mail with a
return receipt requested.

Id.

In Arkansas, statutory service requirements must be strictly

construed, and compliance with them must be exact. Smith v. Sidney Moncrief Pontiac, Buick,
GMC Co., 353 Ark. 701, 709, 120 S.W.3d 525, 530 (2003).
The record contains a certified mail card addressed to “Department of Human Services,
P.O. Box 310, Conway, AR 72033.” The certified mail card bears the signature of Sandy Frodin,
2

and the box for “agent” is checked. ADHS contends that service is improper because Ms. Frodin
is neither the chief executive officer of ADHS nor a person designated by appointment or by
statute to receive service. The record further contains a certified mail card addressed to Carmen
Mosley-Sims at the Office of Chief Counsel, Arkansas Department of Human Services, in which
the Court determines from the record Ms. Mazora mailed her response to defendant’s objection
to service and response to defendant’s motion to dismiss, but not a copy of the summons and of
the complaint, as required by the Federal and Arkansas Rules of Civil Procedure.
The Court cannot determine, on this record, that Ms. Mazora has properly served ADHS.
Therefore, the motion for entry of default is denied.
Rule 4(m) of the Federal Rules of Civil Procedure provides in pertinent part:
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.
The Court exercises its discretion under Rule 4(m) to extend the time for service rather
than dismiss this case without prejudice. See Adams v. Allied Signal Gen. Aviation Avionics, 74
F.3d 882, 887 (8th Cir. 1996). Ms. Mazora shall have until January 21, 2014, to serve ADHS
with process.
II.

Appointment of Counsel

In her response Ms. Mazora renews her request for appointment of counsel (Dkt. No. 19).
The 1964 Civil Rights Act provides for appointment of counsel in employment discrimination
cases “in such circumstances as the court may deem just.” 42 U.S.C. § 2000e-5(f)(1). Three
factors are generally considered relevant in evaluating applications for appointment of counsel in
Title VII cases: (1) the plaintiff's financial resources, (2) the plaintiff's efforts to secure counsel,

3

and (3) the merits of the discrimination claim. Slaughter v. City of Maplewood, 731 F.2d 587,
590 (8th Cir. 1984) The Court notes that “there is no automatic right to the appointment of
counsel in a Title VII case.” Id.

The Court, in reviewing the proceedings and Ms. Mazora’s

request grants her request.
***
For the foregoing reasons, the motion for entry of default is denied and Ms. Mazora’s
renewed request for appointment of counsel is granted. Ms. Mazora shall have until January 21,
2014, to serve ADHS with process.
SO ORDERED this 19th day of November, 2013.

____________________________________
Kristine G. Baker
United States District Judge

4