BENTON v. DONLEY

Filing 11

ORDER DISMISSING 1 Complaint. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 2/26/2014. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
LORI Q. BENTON,
Plaintiff,
v.
MICHAEL B. DONLEY, Secretary,
Department of Defense,
Defendant.

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CIVIL ACTION NO. 5:13-CV-147 (MTT)

ORDER
The Plaintiff has twice been ordered to show cause why her complaint should not
be dismissed for failure to properly serve the Defendant. (Docs. 6; 8). Neither of the
Plaintiff’s responses indicated that she properly served the Defendant or explained her
failure to do so. (Docs. 7; 9). In fact, based on the Plaintiff’s most recent response, it
appears she simply mailed copies of the complaint and requests for waivers of service
to her supervisor at Robins Air Force Base and to Robins Air Force Base itself. (Doc.
9). Because the Plaintiff is pro se, the Court gave the Plaintiff a final chance to perfect
service and informed her on December 6, 2013, that the complaint would be dismissed
if she did not perfect service within 30 days. (Doc. 10). The Court attached Fed. R. Civ.
P. 4 to its Order with the section pertaining to serving the United States, its Agencies,
Corporations, Officers, or Employees highlighted. More than 30 days have elapsed,
and it appears the only action taken by the Plaintiff was to send service papers to the
Clerk’s office, which deposited the papers in the U.S. Attorney’s Office box.

This is not the proper method of service pursuant to Fed. R Civ. P. 4(i), which
requires a plaintiff serving an agency or officer of the United States to deliver a copy of
the summons and complaint to the United States attorney in the district where the action
is brought and to the Attorney General, in addition to serving the agency or officer. Fed.
R. Civ. P. 4(i)(1)-(2).
Pursuant to Rule 4(m), the Court, after notice to the Plaintiff, must dismiss the
action without prejudice if the Defendant is not served within 120 days after the
complaint is filed, unless the Plaintiff shows good cause for the failure or the Court, in its
discretion, extends the time for service without a showing of good cause. Fed. R. Civ.
P. 4(m). Thus, the Court has discretion to extend the time for service even if a plaintiff
has not shown good cause for failing to properly serve the defendant. Horenkamp v.
Van Winkle And Co., Inc., 402 F.3d 1129, 1132 (11th Cir. 2005). In exercising its
discretion, the Court must consider whether other circumstances warrant an extension
of time based on the facts of the case even if the plaintiff fails to show good cause.
Lepone-Dempsey v. Carroll Cnty. Comm’rs, 476 F.3d 1277, 1282 (11th Cir. 2007).
Advisory Committee Notes to the federal rules provide some guidance as to what
factors may be considered, such as the running of the statute of limitations. Fed. R.
Civ. P. 4(m), Advisory Committee Note, 1993 Amendments.
The Plaintiff has failed to properly serve the Defendant and has not shown good
cause for this failure in any of her responses. The Court has already provided the
Plaintiff a reasonable time the cure her failure to serve all parties required to be served
pursuant to Fed. R. Civ. P. 4(i). The Court has considered whether any other factors
warrant extending the time for service, including the fact dismissal will preclude the

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Plaintiff from re-filing within the 90-day period of receiving her right-to-sue letter from the
EEOC. However, the Court declines to extend the time for service. Despite giving the
Plaintiff multiple opportunities to show cause for failure to properly serve the Defendant
and providing the Plaintiff with a how-to guide in the form of Rule 4 attached to its
December 6th Order, the Plaintiff has not perfected service. The Court does not believe
additional time will yield a different result. Accordingly, the Plaintiff’s complaint is
DISMISSED.1

SO ORDERED, this the 26th day of February, 2014.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

1

While dismissals pursuant to Fed. R. Civ. P. 4(m) are generally without prejudice, the Court notes the
practical effect is that the dismissal is with prejudice because the Plaintiff will be time-barred from refiling
her action.

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