MITCHUM v. COLISEUM MEDICAL CENTER LLC et al

Filing 20

ORDER DENYING 17 Motion to Dismiss Party. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 2/19/2014. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TRACY MITCHUM,
Plaintiff,
v.
COLISEUM MEDICAL CENTER, LLC
and DAVID RUTLAND,
Defendants.

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CIVIL ACTION NO. 5:13-CV-246 (MTT)

ORDER
Before the Court is Defendant David Rutland’s motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(5). (Doc. 17). The Plaintiff did not serve Rutland with a copy of
her complaint for more than 120 days after she filed it.1
“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.”
Fed. R. Civ. P. 4(m) (emphasis added). That is, the Court has discretion to extend the
time for service even if a plaintiff has not shown good cause for not serving the
defendant. Horenkamp v. Van Winkle And Co., Inc., 402 F.3d 1129, 1132 (11th Cir.

1
The Plaintiff sued the Defendants on July 9, 2013 alleging various employment discriminationrelated claims. (Doc. 1). The Plaintiff served Coliseum Medical Center but did not serve
Rutland. Coliseum filed its answer on August 26, 2013. (Doc. 5). On November 15, 2013,
more than 120 days after the filing of the Plaintiff’s complaint, the Court ordered the Plaintiff to
show cause as to why she had not served Rutland. (Doc. 8). The Plaintiff personally served
Rutland with a copy of the complaint on November 28, 2013 (Doc. 11-1) and requested the
Court extend the time for service to that date. She did not explain why she had not served
Rutland sooner. (Doc. 12).

2005). When the Court exercises this discretion, it should consider whether the
circumstances warrant an extension of time based on the facts of the case. LeponeDempsey v. Carroll Cnty. Comm’rs, 476 F.3d 1277, 1282 (11th Cir. 2007). As Rutland
notes, 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. However, the Committee’s
examples are “not an exhaustive list.” Lepone-Dempsey, 476 F.3d at 1282.
The Plaintiff has not advanced a reason for failing to timely serve Rutland nor
does she contend that she has good cause for her delay. However, the circumstances
of this case warrant an extension. It would ultimately be a waste of time for the Court to
dismiss the claims against Rutland because the dismissal would be without prejudice.
The Plaintiff could merely refile a separate lawsuit against him or move to amend her
complaint to join Rutland as a party to her ongoing suit against Coliseum. Although the
Plaintiff has asserted different claims against the Defendants, these claims arise out of
the same alleged facts. There is no reason to squander scarce judicial resources
litigating them in separate actions. Accordingly, the time for serving Rutland is
extended to November 28, 2013, the date he was actually served.
Because the Plaintiff timely served Rutland during this extended period, his
motion to dismiss is DENIED.
SO ORDERED, this 19th day of February, 2014.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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