CURRY v. MODENA et al
Filing
10
ORDER GRANTING 7 Motion to Dismiss Complaint. The Plaintiff's complaint is DISMISSED with prejudice. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 1/22/2014. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ENOS CURRY, JR.,
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Plaintiff,
v.
Sheriff JERRY MODENA and Chief
Deputy RUSSELL NELSON,
Defendants.
CIVIL ACTION NO. 5:13-cv-249 (MTT)
ORDER
This matter is before the Court on the Defendants’ motion to dismiss (Doc. 7).
For the following reasons, the Defendants’ motion is GRANTED, and the complaint is
DISMISSED with prejudice.
I. Insufficient service of process
The Defendants contend the complaint should be dismissed pursuant to Fed. R.
Civ. P. 12(b)(5) because the Plaintiff failed to serve them within 120 days of filing the
complaint as required by Fed. R. Civ. P. 4(m). On July 11, 2013, the Plaintiff filed a
complaint against the Defendants asserting claims of race discrimination pursuant to
Title VII. On November 12, 2013, after the 120-day time period expired, the Court
ordered the Plaintiff to show cause by December 12, 2013 why his case should not be
dismissed for failure to serve the Defendants. (Doc. 4). On November 16, 2013, the
Plaintiff personally served the Defendants. (Docs. 5, 6). The Plaintiff never responded
to the Court’s Order or the Defendants’ motion to dismiss.
This is not the first time the Plaintiff has been before the Court in this precise
situation. On June 11, 2013, the Court granted the Defendants’ motion to dismiss an
identical case for insufficient service of process. Order on Motion to Dismiss, Curry v.
Modena, No. 5:12-CV-462 (MTT), 2013 WL 2629531 (M.D. Ga.).1 In that case, the
Plaintiff also failed to properly serve the Defendants within 120 days of filing the
complaint and personally served them only after the Court’s show-cause Order. Instead
of complying with one of the permissible methods of service in Fed. R. Civ. P. 4(e), the
Plaintiff mailed a copy of the complaint and summons to the Defendants without
enclosing a waiver of service form or requesting a waiver of service. The Court
specifically explained that mailing a complaint and summons is not a proper method of
service in its prior dismissal Order. Order on Motion to Dismiss, Curry v. Modena, No.
5:12-CV-462 (MTT), 2013 WL 2629531 (M.D. Ga.). Nonetheless, the Defendants
allege, and the Plaintiff does not dispute, that the Plaintiff did the same thing in this case
and simply mailed both Defendants a copy of the complaint and summons without
enclosing a waiver form or seeking a waiver. (Docs. 8 at 4-5, 9-4, 9-5). The only
difference between the two cases is the Plaintiff responded to the Court’s Order in the
previous case instead of leaving the Court to guess at his reasons for failing to timely
serve the Defendants.
The Court must extend the time for service if the Plaintiff can show good cause
for the failure to timely serve the Defendants. Fed. R. Civ. P. 4(m). “Good cause exists
‘only when some outside factor[,] such as reliance on faulty advice, rather than
1
As discussed below, it is apparent this dismissal was effectively a dismissal with prejudice
because the statute of limitations had run. Had the Plaintiff advised the Court of this, the Court
would have considered whether dismissal was appropriate. However, the Plaintiff never
responded to the Defendants’ motion to dismiss, and his response to the show-cause order
made no mention of it.
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inadvertence or negligence, prevented service.’” Lepone-Dempsey v. Carroll Cnty.
Comm’rs, 476 F.3d 1277, 1281 (11th Cir. 2007) (quoting Prisco v. Frank, 929 F.2d 603,
604 (11th Cir. 1991)). When a district court finds a plaintiff fails to show good cause,
“the district court must still consider whether any other circumstances warrant an
extension of time based on the facts of the case.” Id. at 1282. Given that the Plaintiff
has provided no explanation whatsoever for the failure to timely serve the Defendants,
the Plaintiff has failed to show good cause exists. Further, there are no other
circumstances in this case that warrant an extension of time.
II. Statute of limitations
The Defendants further contend that the Plaintiff’s case is now time-barred and
should be dismissed with prejudice. A plaintiff must file his complaint within 90 days of
receiving his right-to-sue letter from the Equal Employment Opportunity Commission
(“EEOC”) in order to maintain a claim pursuant to Title VII. See 42 U.S.C. § 2000e5(f)(1); Green v. Union Foundry Co., 281 F.3d 1229, 1233 (11th Cir. 2002). According
to the complaint, the EEOC issued a right-to-sue letter on August 23, 2012, and the
Plaintiff received the letter on August 25, 2012. (Doc. 1 at 3).2 Therefore, the 90-day
period began to run on August 25, 2012 when the Plaintiff received the letter and
expired on November 23, 2012. See Zillyette v. Capital One Fin. Corp., 179 F.3d 1337,
1339 (11th Cir. 1999); Stallworth v. Wells Fargo Armored Servs. Corp., 936 F.2d 522,
524 (11th Cir. 1991). The Court’s dismissal of the Plaintiff’s first case in June 2013
effectively operated as a dismissal with prejudice because the 90-day limitations period
had already expired. See Lau v. Klinger, 46 F. Supp. 2d 1377, 1380 (S.D. Ga. 1999)
2
A copy of the right-to-sue letter is also attached as an exhibit to the Defendants’ motion.
(Docs. 8-8; 9-8).
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(citing Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1307 (3d Cir. 1995)); see
also Justice v. United States, 6 F.3d 1474, 1482 n.15 (11th Cir. 1993) (noting dismissal
without prejudice for failure to comply with a court order effectively operates as a
dismissal with prejudice if entered after the statute of limitations has expired).
Though the 90-day time period is not jurisdictional, the Plaintiff has not provided
the Court with any basis for equitable tolling. See Bost v. Fed. Express Corp., 372 F.3d
1233, 1242 (11th Cir. 2004) (“Although a court may equitably toll a limitations period,
the plaintiffs must establish that tolling is warranted.”); Bryant v. U.S. Dep’t of
Agriculture, 967 F.2d 501, 504 (11th Cir. 1992) (explaining period for filing Title VII
actions is akin to statute of limitations and subject to equitable tolling). Further,
“[d]ismissal of a complaint, without prejudice, does not allow a later complaint to be filed
outside the statute of limitations.” Bost, 372 F.3d at 1242 (finding dismissal of an ADEA
complaint without prejudice did not allow a later complaint to be filed outside statute of
limitations).
Because the Plaintiff failed to timely serve the Defendants and because the
Plaintiff’s claim is time-barred, the Defendants’ motion to dismiss (Doc. 7) is GRANTED.
The Plaintiff’s complaint is DISMISSED with prejudice.
SO ORDERED, this 22nd day of January, 2014.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
__________________
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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