Evans v. Strayer University

Filing 12

ORDER denying 7 Motion to Dismiss; denying 9 Motion for Default Judgment.The Court Orders Plaintiff to properly serve Defendant in accordance with Federal Rule of Civil Procedure 4. The Court further Orders Plaintiff to file notice with this Co urt of service of process within 14 days of the date of this Order. If Plaintiff fails to properly serve Defendant and give notice within 14 days of this Order, the Court will dismiss Plaintiff's complaint and close this case. Signed by Judge J. Randal Hall on 10/03/2016. (thb)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OP GEORGIA
AUGUSTA DIVISION

STACIE ELAINE EVANS,

*

Plaintiff,

*
*

*

v.

CV 115-196

*

STRAYER UNIVERSITY,

*

Defendant.
*
*
*

ORDER

Plaintiff,

employer,

proceeding pro se,

accuses Defendant,

of racial discrimination,

her former

sexual discrimination,

and

retaliation - all potential violations of Title VII of the Civil

Rights Act of 1964.

Currently,

the parties are engaged in a

procedural dispute in which the Defendant has filed a motion to
dismiss

(doc.

7)

and Plaintiff

has filed a motion for default

judgment (doc. 9) . The motions present three procedural issues:
(1)

Is Plaintiff entitled to a Default Judgment under Rule 55?;

(2) Did Plaintiff timely file her complaint in this Court?; and
(3) Does Plaintiff's failure to properly serve Defendant warrant
dismissal

under

12(b)(5)?

For

Federal

the

Rule

following

of

Civil

reasons,

the

Procedure

Court

4 (m)

finds

or

that

Plaintiff is not entitled to a Default Judgment; Plaintiff did

timely file her complaint; and Plaintiff's failure to properly

serve

Defendant

Because

the

heavily

upon

does

issues
the

not

warrant

in dispute

filing

dismissal

—

in

are procedural

dates

of

various

this

ones

instance.

that

documents,

the

depend
Court

briefly recounts the short history of this case.
I.

Plaintiff

began

her

Discrimination with the
("EEOC") .

to-sue

BACKGROUND

litigation

Equal

by

Employment

filing

a

Charge

of

Opportunity Commission

The EEOC rejected her claim and mailed her a right-

letter

on

September

10,

2015.

(Doc.

1.)

The

notice

contained explicit instructions informing Plaintiff that she had
ninety days

to

file

a

complaint

in

state

else she would lose her right to sue.

or

federal

court

or

Plaintiff filed suit in

this Court on December 14, 2015, ninety-five days after the EEOC
mailed her notice.

On

December

(Doc.

15,

1.)

2015,

this

Court

issued a detailed order

explaining the basic rules of litigation and informing Plaintiff
that she had ninety days to serve Defendant or risk dismissal of
her

case.

Defendant

(Doc.

5.)

Plaintiff

failed

within the ninety-day deadline.

to

properly

Thus,

serve

on April

21,

2016, this Court issued another order giving Plaintiff fourteen

days to explain why she had not yet served Defendant.
Also on April 21,

complaint
(Doc. 7.)

because

(Doc. 6.)

Defendant moved to dismiss Plaintiff's

Plaintiff had not

timely served Defendant.

In its motion, Defendant admitted that Plaintiff had

attempted to serve it on March 30, but had not done so properly.

On April 26,

to

respond

(Doc. 8.)

Plaintiff filed a "Response to Motion" that seemed

to

the

order

this

In her motion,

Court

issued

five

days

prior.

Plaintiff alleged that nothing in the

order issued December 15 stated that she had only ninety days to
serve

had

120

of

the

fact that she had attempted to serve Defendant on March 30.

On

days

May

Defendant

to

and

that

effectuate

10,

Plaintiff

the

Clerk's

service.

filed

Office

Plaintiff

a motion

for

told

made

her

no

default

mention

judgment

basis that Defendant failed to timely respond to
(Doc.

the

her complaint.

DISCUSSION

Plaintiff's Motion for Default Judgment
The

Court

judgment.

first,

first

addresses

the plaintiff

default,
States

198013,

Plaintiff's

motion

for

default

"Obtaining a default judgment is a two-step process:

must

clerk of court; and second,

55).

on

9.) .
II.

A.

she

the
v.

plaintiff

$11,000.00

in

entry

of

of

default

from the

after the clerk has made an entry of

can

at *2 (M.D. Ga.

"An

seek an entry

seek a default

U.S.

Jan.

Funds,

27,

default

No.

2009)

judgment."

United

5:08-CV-102,

(citing Fed.

and subsequent

entry

2009

WL

R.

Civ.

P.

of

default

judgment are appropriate Mw]hen a party against whom a judgment
for

affirmative

otherwise

relief

defend.'"

is

Id.

(alteration in original).

sought

(quoting

has

Fed.

failed

R.

to

Civ.

plead

P.

or

55(a))

Plaintiff is not entitled to a default judgment because she
has

not obtained an entry of default.

obtain

one,

because

Defendant

attempted to defend.

Thus,

has

Nor will she be

appeared

the Court

denies

in

this

able to

case

Plaintiff's

and

Motion

for Default Judgment.
B.

Defendant's Motion

The

Court

Defendant

now

makes

to Dismiss

addresses

three

Defendant's

arguments

that

dismissal of Plaintiff's complaint.
Plaintiff's

suit

is

within ninety days
letter.

Second,

dismissal

without
that

Defendant

because

Plaintiff

a showing

Plaintiff's

dismissal

under

day

Rule

to

to

claims

she

to

failed to

4 (m)

Defendant

Court

suit

right-to-sue

serve

timely serve process

The

file

necessitates

timely

Third,

12(b)(5).

justify

Defendant argues that

Rule

failed

dismiss.

believes

she received her

of good cause.

failure

it

First,

time-barred because

from the

motion

process

maintains

also warrants

finds

none

of

Defendant's arguments persuasive.

First,
timely

file

evidence,

days

contrary
a

this

after

the

to

Defendant's

complaint
Court

EEOC

with

this

assertion,
Court.

Plaintiff

Absent

did

contrary

presumes the date of receipt to be three

mails

a

right-to-sue

letter.

Kerr v.

McDonald's Corp., 427 F.3d 947, 953 n.9 (11th Cir. 2005) ("When the

date of the receipt is in dispute, this court (sic) has applied a

presumption of three days for receipt by mail ....") (citations
omitted) .

Application

of this

rule

puts

the

due

date

for

Plaintiff's complaint on December 12, 2015: a Saturday.
Rule of Civil Procedure 6(a)(1)

"Saturday,

Sunday,

states that if the due date is

or legal holiday,

holiday."

complaint

was

Thus,

Monday,

the

proper

December

a

the period continues to run

until the end of the next day that is not a Saturday,
legal

Federal

due

15,

date

2015.

for

Sunday, or
Plaintiff's

Because

Plaintiff

filed her complaint on December 15, her complaint was timely.
Second,

complaint

the

Court

because

of

is

not

obligated

untimely

to

service.

dismiss

Federal

Plaintiff's

Rule

of

Civil

Procedure 4 (m)

gives the Court two options if a plaintiff fails

to

defendant

serve

either

"dismiss

defendant

time."
the

the

or

the

order

Plaintiff

prefers
has

action
that

Fed. R. Civ.

Court

within

ninety

days.

without

service

be

prejudice
made

the

latter
time

option.
to

properly

se

litigants,

Loren

v.

Plaintiff

instructions.

a

that

specified

In this instance,

serve

because

Defendant,

the

argument.

that its

patience with Plaintiff

While this Court grants some leniency to pro

Plaintiff

Sasser,
must

however,

must

against

Additionally,

Court denies as moot Defendant's 12(b)(5)

The Court notes,

Court

within

P. 4 (m) (emphasis added).

additional

is not unlimited.

The

must

309

also

pay

Contrary

F.3d

conform to
1296,

careful

to

procedural

1304

(11th

attention

Plaintiff's

clearly instructed Plaintiff to serve

days of the filing of her complaint.

to

Cir.
this

assertion,

Defendant

rules.

See

2002).
Court's

this

Court

within ninety

(Doc. 5 at 2 ("Plaintiff

must

serve

complaint

Defendant

was

filed,

dismissal of
serve

within

and

ninety

failure to do

Defendant or the

Defendant

and

file

days

from

the

so may

result

entire case.").)

evidence

of

service

with

to

properly
Civil

reasons mentioned above,

Dismiss

serve

Procedure

date

of

Defendant

4.

this

and

(doc.

7) .

Defendant

notice with this
the

the

Court

Failure to do

CONCLUSION

the Court DENIES both the

Plaintiff's Motion for Default Judgment
Motion

in the

in dismissal of this case.
III.

For the

her

Plaintiff must

within fourteen days from the date of this order.
so will result

date

The

in

Order.

further

service of
If

notice

Court

accordance

Court

Court of

give

The

(doc.

14

and Defendant's

ORDERS

with

ORDERS

Plaintiff

Federal
Plaintiff

Rule
to

to

of

file

process within 14 DAYS of

Plaintiff

within

9)

fails

DAYS

of

to

properly

this

serve

Order,

the

Court will dismiss Plaintiff's complaint and close this case.

ORDER
October,

ENTERED

at

Augusta,

Georgia,

this

o>_j

2016.

HONORABEE J.
UNITED STATES

JTHERN

RAN0AL HALL
DISTRICT

DISTRICT

JUDGE

OF GEORGIA

day

of