Gonzalez v. Butts County, Georgia et al
ORDER GRANTING 35 Motion to Dismiss Party. Defendants Bethany Washington, Jenny Brenham, M.L. Rice, C.L. Brenham, and Debra Hunter are dismissed without prejudice. Ordered by Judge Marc Thomas Treadwell on 3/16/2012. (tlh)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
BUTTS COUNTY, GEORGIA, et al.,
CIVIL ACTION NO. 5:10-CV-164 (MTT)
This matter is before the Court on Defendant “Juvenile Bethany Washington’s”
Motion to Dismiss (Doc. 35) and further consideration of the Plaintiff’s response to the
Court’s show cause order. On August 25, 2010, the Court entered a show cause order
to the Plaintiff to demonstrate why the claims against Defendants Jenny Brenham, M.L.
Rice, C.L. Brenham, Guardian of B. Washington, B. Washington, and Debra Hunter
should not be dismissed pursuant to Rule 4(m) for lack of proper service. Plaintiff
responded on September 7, 2010, claiming that Defendants Jenny Brenham, M.L. Rice,
C.L. Brenham, and Debra Hunter could not be located and requesting additional time to
perfect service. On the same day he filed his response to the show cause order, the
Plaintiff filed two documents, both identified as “Summons Returned Executed by
Joaquin Gonzales as to B. Washington.” (Docs. 9 & 10). Doc. 9 is a blank summons
that has not been executed by any process server. Doc. 10 is an executed summons
for “Angie Washington/Parent of Bethany.” Thus, neither Doc. 9 nor Doc. 10 is an
executed summons for Bethany Washington, and there is therefore no proof of service
as to Bethany Washington.
Federal Rule of Civil Procedure 4(m) provides:
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
Fed. R. Civ. P. 4(m).
“[G]ood cause exists only when some outside factor, such as reliance on faulty
advice, rather than inadvertence or negligence, prevented service.” Lepone-Dempsey
v. Carroll Cnty. Comm’rs, 476 F.3d 1277, 1281 (11th Cir. 2007) (quotations and citation
omitted). Even if a plaintiff fails to show “good cause” to extend the time for service of
process, courts must still consider, prior to dismissing the case, whether any other
circumstances justify an additional extension of time. Lepone-Dempsey, 476 F.3d at
1282. “Relief may be granted, for example, if the applicable statute of limitations would
bar the refiled action, or if the defendant is evading service or conceals a defect in
attempted service.” Fed. R. Civ. P. 4(m), Advisory Committee Note, 1993
Amendments. Although the expiration of the applicable statute of limitations may bar a
refiled action, this factor alone does not require the Court to extend the time for service
of process. Horenkamp v. Van Winkle and Co., Inc., 402 F.3d 1129, 1133 (11th Cir.
As discussed above, the Plaintiff has not established that service as to Bethany
Washington or any of the other Defendants named above was properly effected at any
time, including within the 120-day period in Ruled 4(m). Further, the Plaintiff’s response
to the Court’s show cause order did not address the status of the Plaintiff’s efforts to
serve Bethany Washington. In the Plaintiff’s response to the Motion to Dismiss, filed
February 21, 2012, the Plaintiff claims that service has been effected on Bethany
Washington and that he would file the return of service “[u]pon receipt of proof of
service from the process server.” It has been more than three weeks since the Plaintiff
filed this response and there is still no record of service.
Having considered the circumstances of this case, including the potential
expiration of the limitations period, the Court concludes that the Plaintiff is not entitled
any additional time to perfect service against Bethany Washington or Defendants Jenny
Brenham, M.L. Rice, C.L. Brenham, and Debra Hunter. First, there is no evidence that
any Defendant has evaded service or concealed a defect in attempted service. Second,
this case has been pending for nearly two years, and the Court has warned the Plaintiff
that a failure to properly serve the Defendants could result in their dismissal from this
action. Though the Plaintiff informed the Court in 2010 that he needed additional time
to locate certain Defendants and that he would file proof of service as to Bethany
Washington once he received proof of service from the process server, the Plaintiff
continues to drag his feet, and he has failed to keep the Court apprised of his efforts to
perfect service on these Defendants. Any harm to the Plaintiff’s case is therefore of his
own making. See Melton v. Wiley, 262 Fed. Appx. 921, 924 (11th Cir. 2008) (affirming
district court’s dismissal in light of the running of the statute of limitations). Accordingly,
the Defendant’s Motion to Dismiss is granted, and Bethany Washington is dismissed
without prejudice. Defendants Jenny Brenham, M.L. Rice, C.L. Brenham, and Debra
Hunter are also dismissed without prejudice pursuant to Rule 4(m).
SO ORDERED, this 16th day of March, 2012.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?