Horton v. Shinseki et al

Filing 6

ORDER denying 2 Motion to Dismiss and ordering that Mr. Horton has up to and including November 18, 2013, to complete service upon the United States. The Clerk is directed to send a copy of this Order via certified mail to Mr. Horton at his address of record. Signed by Judge Kristine G. Baker on 10/17/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
ANDREW L. HORTON
v.

PLAINTIFF
Case No. 4:13-cv-00147 KGB

ERIK K. SHINESKI,
Secretary of Veterans Affairs,
MICHAEL R. WINN,
DENIESE EVANS,

DEFENDANTS
ORDER

On March 15, 2013, pro se plaintiff Andrew L. Horton filed a complaint against
defendants Eric K. Shinseki, Michael R. Winn, and Deniese Evans under Title VII of the Civil
Rights Act of 1964 for employment discrimination (Dkt. No. 1). Mr. Horton paid the filing fee
and filed his complaint. On August 16, 2013, defendants filed a motion to dismiss because Mr.
Horton did not perfect service within 120 days after he filed his complaint (Dkt. No. 2).
Defendants request that the Court dismiss the case without prejudice or, alternatively, enter an
order that service be completed within a specific time (Dkt. No. 3, at 4). The Court denies
defendants motion to dismiss and orders that Mr. Horton has up to and including November 18,
2013, to complete service.
Rule 4 of the Federal Rules of Civil Procedure governs the contents of a summons, the
issuance of the summons, and the process by which to serve defendants a copy of the summons
and complaint. Because defendants are employees of a United States agency being sued in an
individual capacity for an act or omission occurring in connection with duties performed on the
United States’ behalf, Mr. Horton must serve both the defendants under Rule 4(e) and the United
States under Rule 4(i)(1). Fed. R. Civ. P. 4(i)(3). Mr. Horton properly served the defendants but
not the United States. The United States is properly served by (1) delivering a copy of the

summons and complaint to the United States Attorney for the district where the action is brought
or a person in the office who has been designated to accept service, or instead sending a copy of
each by registered or certified mail to the civil process clerk at the United States Attorney’s
office, and (2) sending a copy of each by registered or certified mail to the Attorney General of
the United States in Washington D.C. Fed. R. Civ. P. 4(i)(1)(A) & (B).
Rule 4(m) states that “[i]f 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.” Under Rule 4(m), a district court must engage in a two-step analysis:
[1] [I]f the district court concludes there is good cause for plaintiff's failure to
serve within 120 days, it shall extend the time for service. [2] If plaintiff fails to
show good cause, the court still may extend the time for service rather than
dismiss the case without prejudice. . . . To warrant discretionary extension, the
plaintiff must establish excusable neglect.
Kurka v. Iowa Cnty., 628 F.3d 953, 957 (8th Cir. 2010) (quoting Adams v. AlliedSignal Gen.
Aviation Avionics, 74 F.3d 882, 887 (8th Cir. 1996)). “Excusable neglect” requires “good faith
and some reasonable basis for noncompliance with the rules.” Adams, 74 F.3d at 887. Factors a
court may consider in determining whether neglect is excusable include “the danger of prejudice
to the [nonmovant], the length of the delay and its potential impact on judicial proceedings, the
reason for the delay, including whether it was within the reasonable control of the movant, and
whether the movant acted in good faith.” Gibbons v. United States, 317 F.3d 852, 854 (8th Cir.
2003) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395
(1993)). The reason for the delay has the greatest significance when weighing these factors. Id.
Excusable neglect is an “elastic concept” permitting courts to provide relief where the failure to

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meet a deadline is caused by “inadvertence, mistake, or carelessness, as well as by intervening
circumstances beyond the party’s control.” Kurka, 628 F.3d at 959 (quoting Chorosevic v.
MetLife Choices, 600 F.3d 934, 946 (8th Cir. 2010)). “[T]he determination is at bottom an
equitable one, taking account of all relevant circumstances surrounding the party’s omission.”
Gibbons, 317 F.3d at 854 (quoting Pioneer, 507 U.S. at 395).
Mr. Horton fails to demonstrate good cause for his failure to serve within the 120-day
period. However, this Court retains discretion to grant an extension of time to perfect service if
it finds excusable neglect. Here, dismissal of the action without prejudice may have the actual
effect of terminating Mr. Horton’s Title VII claim because of the statute of limitations, which
requires a federal court action be filed 90 days after the EEOC issues a final decision or order.
While “[t]he running of the statute of limitations does not require the district court to extend time
for service of process,” especially when plaintiff can offer no legitimate reason for the untimely
service, id. (quoting Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1306 (3rd Cir. 1995)), it
can be “a strong argument in favor of a permissive extension, at least when such an extension
would cause little or no prejudice to the defendant,” Colasante v. Wells Fargo Corp., 81 F.
App’x 611, 614 (8th Cir. 2003) (per curiam) (unpublished). It is unclear whether an extension
would cause any prejudice to the defendants, as all were served the summons and complaint
individually and were represented by the U.S. Attorney in their motion to dismiss; conversely,
the prejudice to Mr. Horton would be severe. Further, Mr. Horton properly served defendants
individually. For these reasons, and after taking account of all relevant circumstances, the Court
finds excusable neglect and hereby extends Mr. Horton’s deadline to serve properly the United
States.

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Mr. Horton is hereby directed to comply with Rule 4(i)(3) of the Federal Rules of Civil
Procedure by properly serving the United States as required in Rule 4(i)(1)(A) & (B). Mr.
Horton has up to and including November 18, 2013, to serve properly the United States.
Pursuant to Local Rule 5.5 (c)(2), it is the duty of any party not represented by counsel to
notify promptly the Clerk and the other parties to the proceedings of any change in his or her
address, to monitor the progress of the case, and to prosecute or defend the action diligently. If
any communication from the Court to a pro se plaintiff is not responded to within 30 days, the
case may be dismissed without prejudice. Any party proceeding pro se shall be expected to be
familiar with and follow the Federal Rules of Civil Procedure.
The Clerk is directed to send a copy of this Order via certified mail to Mr. Horton at his
address of record.
SO ORDERED this 17 day of October, 2013.

________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE 

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