Moss v. Texarkana Arkansas School District et al

Filing 17

ORDER denying 8 Motion to Dismiss; granting 15 Motion to Extend Time to Effect Service. Signed by Honorable Susan O. Hickey on September 24, 2015. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
PETROLIA MOSS
v.

PLAINTIFF
Case No. 4:14-cv-04157

TEXARKANA ARKANSAS SCHOOL
DISTRICT; and THERESA COWLING,
BECKY KESLER, and ROBIN HICKERSON,
in their official and individual capacities

DEFENDANTS

ORDER
Before the Court is Defendants’ Motion to Dismiss Plaintiffs’ Complaint. (ECF No. 8).
Plaintiff has filed a response. (ECF No. 13). Defendants have filed a reply. (ECF No. 14).
Defendants assert that Plaintiff’s claims against them should be dismissed for failure to timely effect
service under Federal Rule of Civil Procedure 4(m). They also assert that they are entitled to a
dismissal under Federal Rules of Civil Procedure 4(a)(1), 4(b), 4(c)(1), and 4(l)(1). The Court has
also considered Plaintiff’s Motion to Extend Time to Effect Service. (ECF No. 15). Defendant has
filed a response. (ECF No. 16). The Court finds these matters ripe for its consideration.
Plaintiff filed her Complaint on November 26, 2014. (ECF No. 1). On June 2, 2015, the
Clerk entered a Show Cause Order, directing Plaintiff to show cause why the Complaint should not
be dismissed for failure to comply with Federal Rule of Civil Procedure 4(m). (ECF No. 5).
Plaintiff responded to the Show Cause Order on June 12, 2015, asserting that she was informed by
her union attorneys that there was not a substantial likelihood that she would prevail and she desires
time to hire an attorney that can handle her case. (ECF No. 6). On July 14, 2015, the Miller County
Sheriff’s Department delivered to the Texarkana, Arkansas School District administration
receptionist a copy of Plaintiff’s Complaint without a summons attached. On July 30, 2015,

Defendants filed the present Motion to Dismiss Plaintiffs’ Complaint. (ECF No. 8). Plaintiff later
moved to extend time to effect service. (ECF No. 15).
Plaintiff was proceeding pro se when she filed her lawsuit in November 2014. Plaintiff later
obtained an attorney who entered his appearance in August 2015. There is no indication that
Plaintiff attempted to serve any Defendant between the time she instituted this lawsuit and when she
eventually attempted to serve the Texarkana, Arkansas School District nearly eight months later.
There is nothing on the record that indicates any Defendant has yet been properly served.
Plaintiff argues that she has demonstrated good cause for failure to serve Defendants. She
asserts that her union attorneys obtained the summonses on December 2, 2014 but that they were not
delivered to her until March 9, 2015, along with notice from the union attorneys that she needed to
accomplish service on her own. Plaintiff also argues that during the time she should have served
Defendants, she was suffering and being treated for severe depression and other physical ailments
and was unable to concentrate on how to further proceed. Finally, she asserts that she attempted to
obtain counsel and was unable to do so until August 2015.
Federal Rule of Civil Procedure 4 provides a deadline for proper service as well as court
discretion for extension of the service deadline. Rule 4(m) reads 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.
In deciding whether to extend the 120-day period, the Court must first determine whether good cause
exists. Adams v. AlliedSignal General Aviation Avionics, 74 F.3d 882, 887 (8th Cir. 1996). If the
Court finds good cause for the delay, the Court must extend time for service, ending the inquiry. Id.
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If plaintiff fails to show good cause, the court still may extend the time for service rather than
dismiss the case without prejudice if the Court finds excusable neglect. Id.
In determining whether good cause exists, the district court must focus primarily “on the
plaintiff’s reasons for not complying with the time limit in the first place.” Boley v. Kaymark, 123
F.3d 756, 758 (3d Cir. 1997) (quotations omitted). “[G]ood cause is likely (but not always) to be
found when [1] the plaintiff’s failure to complete service in timely fashion is a result of the conduct
of a third person, typically the process server, [2] the defendant has evaded service of the process or
engaged in misleading conduct, [3] the plaintiff has acted diligently in trying to effect service or
there are understandable mitigating circumstances, or [4] the plaintiff is proceeding pro se or in
forma pauperis.” Kurka v. Iowa Cnty., Iowa, 628 F.3d 953, 957 (8th Cir. 2010) (quoting 4B Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1137 (3d ed. 2002)).
Plaintiff argues that she has demonstrated good cause because she was proceeding pro se, her
health creates mitigating circumstances, and the union attorneys did not inform her of how to perfect
service. While proceeding pro se is a factor to consider in determining whether good cause exists
for an extension, pro se plaintiffs are not excused from complying with the Court’s procedural rules.
See Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir. 1984) (per curiam). Plaintiff’s evidence
demonstrates that the union attorneys informed her that she had to serve the Summons and
Complaint within 120 days, and advised her to act quickly. Additionally, they informed her that
professional process servers exist, offered to provide her with names of process servers, and advised
her that service was best if done in person. The union attorneys’ actions in this case do not
demonstrate good cause for Plaintiff’s failure to serve Defendants as the result of a third party’s
conduct.
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Plaintiff has also presented evidence of medical records attempting to demonstrate that her
medical status rendered her “unable to concentrate or focus on how to proceed further.” However,
those records were created in January 2014. After that time, she was successfully able to file a
Complaint with the EEOC and file this lawsuit. Additionally, she had clear guidance by the union
attorneys of how to properly proceed. Accordingly, the Court finds that Plaintiff has failed to
demonstrate that she acted diligently or had mitigating circumstances sufficient for good cause such
that an extension is mandatory.
Without a showing of good cause, the Court may, within its discretion, extend the time for
service if Plaintiff can demonstrate excusable neglect. Kurka, 628 F.3d at 956. The Eighth Circuit
has described excusable neglect as “an ‘elastic concept’ that empowers courts to” provide relief
where a party’s failure to meet a deadline is “caused by inadvertence, mistake, or carelessness, as
well as by intervening circumstances beyond the party’s control.” Chorosevic v. MetLife Choices,
600 F.3d 934, 946 (8th Cir. 2010) (reviewing excusable neglect under Fed. R. Civ. P. 6(b)). Factors
the 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 [the critical factor], including whether it was within the reasonable control of
the movant, and whether the movant acted in good faith.” See 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)).
Because the judicial preference for adjudication on the merits is implicated here, the Court
must weigh the effect on the party requesting the extension against the prejudice to the defendants.
See Chorosevic v. MetLife Choices, 600 F.3d 934, 947 (8th Cir. 2010) (finding the denial of a motion
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to file out of time would have imposed on the appellees a severe penalty unmatched by any prejudice
to the appellant). The Court finds that the reason for the delay is a combination of Plaintiff’s pro se
status, inability to understand the rules of procedure, and adverse health circumstances. She also
indicated that she was attempting to contact counsel but was unable to do so, and her time for service
was cut short by not receiving the summons for a period of time. Additionally, the danger of
prejudice here to Defendants is limited compared to the possibility that Plaintiff’s claims would be
out of time. Any additional negative impact on the judicial proceedings is minimal. At this stage
in the litigation, Plaintiff has obtained an attorney who can properly carry out her service
requirements. An extension of the time for service, rather than a dismissal, is in the best interest of
justice in this case. The Court finds, in its discretion, that Plaintiff has demonstrated excusable
neglect and her time to effect service should be extended.
Accordingly, Defendants’ Motion to Dismiss (ECF No. 8) is hereby DENIED. Plaintiff’s
Motion to Extend Time to Effect Service (ECF No. 15) is hereby GRANTED. Plaintiff has 60 days
from the date of the entry of this Order to serve Defendants.
IT IS SO ORDERED, this 24th day of September, 2015.

/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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