Perrigo v. USD 500 et al

Filing 25

MEMORANDUM AND ORDER granting 18 Motion to Dismiss. Signed by District Judge Eric F. Melgren on 9/23/2014. Mailed to pro se party Donald Perrigo, Jr. by regular mail. (smg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DONALD E. PERRIGO, JR.,
Plaintiff,

vs.

Case No. 13-2363-EFM-DJW

UNIFIED SCHOOL DISTRICT NO. 500,
Defendant.

MEMORANDUM AND ORDER
Before the Court is Defendant Unified School District No. 500’s Renewed Motion to
Dismiss (Doc. 18). Among other reasons, Defendant U.S.D. No. 500 (“School District”) seeks
dismissal of Plaintiff Donald E. Perrigo, Jr.’s remaining age discrimination claims for Perrigo’s
failure to comply with a court order. The Court ordered Perrigo to properly re-serve a revised
summons and complaint on School District’s authorized agent for service of process. Perrigo
has failed to serve the appropriate complaint. Therefore, the case is dismissed without prejudice.
I.

Factual and Procedural Background

Perrigo originally brought this action pro se against School District and one of its
school’s principals, Sylvia Parra, for alleged discrimination in violation of Title VII of the Civil
Rights Act of 1964,1 the Age Discrimination in Employment Act of 1967 (“ADEA”),2 and the
1

42 U.S.C. § 2000e et seq.

Americans with Disabilities Act of 1990.3

Perrigo also broadly alleged harassment and

retaliation. School District and Parra moved to dismiss Perrigo’s claims for lack of subject
matter jurisdiction, insufficient process, and insufficient service of process. In its May 2014
Order, the Court dismissed all of Perrigo’s claims except those asserted against School District
under the ADEA. But the Order denied School District’s motion to dismiss for insufficient
process and insufficient service of process, finding the deficiencies in service curable. To cure
the defects in Perrigo’s original service, the Court ordered Perrigo to re-serve School District in
accordance with Rule 4 of the Federal Rules of Civil Procedure. The Order instructed Perrigo
that he should address to Susan Westfahl, Clerk for the Board of Education for U.S.D. No. 500, a
new summons and a complaint “contain[ing] only his allegations of violations under the
ADEA.”4 The Order also advised Perrigo that his “failure to properly re-serve the Complaint
[would] result in a dismissal of this case in its entirety.”5
Subsequent to the Court’s Order, Perrigo issued a summons and a complaint to the
address for U.S.D. No. 500, listing as addressee “Susan Westfahl.” Perrigo, however, did not
send a revised complaint. Rather, Perrigo mailed a copy of the original Complaint listing claims
(and a party) already dismissed by the Court’s May 2014 Order. School District then filed the
Renewed Motion to Dismiss (Doc. 18) at issue here. In its Renewed Motion to Dismiss, School
District requests dismissal pursuant to Rules 12(b)(4) and (5) of the Federal Rules of Civil
Procedure. Specifically, School District defends its request for dismissal of Perrigo’s remaining
2

29 U.S.C. § 621 et seq.

3

42 U.S.C. § 12101 et seq.

4

Memorandum and Order, Doc. 15, p. 9 (emphasis added).

5

Id. at 9–10.

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ADEA claims based on Perrigo’s failure to properly serve School District with a revised
summons and complaint according to the Court’s instructions.

In his response to School

District’s motion, Perrigo claims that he complied with the Court’s May 2014 Order by sending a
summons and a complaint to the proper address. Perrigo contends that the Court cannot hold
him responsible for the School District’s (allegedly willful) failure to have the proper recipient,
Susan Westfahl, sign for the service documents.
II.

Legal Standard

Under Rule 41(b) of the Federal Rules of Civil Procedure, if a plaintiff fails to comply
with a court order, a defendant may move to dismiss the action. Rule 41(b) “has long been
interpreted to permit courts to dismiss actions sua sponte for a plaintiff’s failure to . . . comply
with the rules of civil procedure or the court’s orders.”6 Unless the dismissal order states
otherwise, such a dismissal operates as an adjudication on the merits.7
III.

Analysis

There is no dispute that Perrigo has failed to properly re-serve School District as directed
by the Court.8 Specifically the Court warned, “Plaintiff’s re-served Complaint should contain
only his allegations of violations under the ADEA.”9 Instead, Perrigo served School District a

6

Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003) (citing Link v. Wabash R.R. Co., 370 U.S. 626,
630–31 (1962)). Even without directly citing Rule 41(b), School District argues that dismissal is appropriate
because of Perrigo’s failure to comply with a court order. The Court, therefore, understands School District’s
Renewed Motion to Dismiss to encompass a request for dismissal pursuant to Federal Rule of Civil Procedure 41(b).
7

Fed. R. Civ. P. 41(b).

8

Though Perrigo contests the sufficiency of his efforts to re-serve School District’s proper agent for service
of process, his Response demonstrates no like effort to contest School District’s assertion that he failed to revise his
re-served Complaint to include only his ADEA claims. Absent allegation or evidence by Perrigo that he complied
with the Court’s directive to serve a revised Complaint, the Court is without opportunity to find that Perrigo
followed the instructions of the Court’s May 2014 Order.
9

Memorandum and Order, Doc. 15, p. 9.

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copy of his original Complaint.

Therefore, as the Court warned in its May 2014 Order,

“Plaintiff’s failure to properly re-serve the Complaint will result in a dismissal of this case in its
entirety.”10
The remaining issue is whether to dismiss Perrigo’s age discrimination claims with or
without prejudice. Here, even a dismissal without prejudice may operate as a dismissal with
prejudice because the statute of limitations may have run on Perrigo’s ADEA claims stemming
from School District’s actions to modify Perrigo’s working conditions in May 2012.11 Because
dismissal with prejudice “defeats altogether a litigant’s rights to have access to the courts,” it is a
severe sanction that “should be used as a weapon of last, rather than first, resort.”12 Accordingly,
courts must, before dismissing plaintiff’s claims on the merits, consider the following factors:
“(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the
judicial process; . . . (3) the culpability of the litigant; (4) whether the court warned the party in
advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the
efficacy of lesser sanctions.”13 “These factors do not create a rigid test; rather they represent
criteria for the district court to consider prior to imposing dismissal as a sanction.”14

10

Id. at 9–10.

11

See Rodriguez v. Colorado, 521 Fed.Appx. 670, 671 (10th Cir. 2013) (“However, we treat a dismissal
without prejudice as a dismissal with prejudice when the statute of limitations has run on the claims.”). Whether the
statute of limitations has actually run, however, is an issue for another time if Perrigo decides to refile his lawsuit.
12

Mead v. Grubbs, 841 F.2d 1512, 1520 n.6 (10th Cir. 1988) (internal citations and quotation marks

omitted).
13

Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (internal citations and quotation marks
omitted); see also Nasious v. Two Unknown B.I.C.E. Agents, at Arapaho County Justice Center, 492 F.3d 1158,
1162 (10th Cir. 2007).
14

Ehrenhaus, 965 F.2d at 921.

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The Court finds that the balance of these five factors favors dismissal without prejudice.
First, School District has suffered a degree of prejudice because Perrigo has failed to serve its
appropriate agent with an amended complaint more than four months after the original court
order. School District also has expended time and resources to manage this suit without the
benefit of a revised complaint to be on notice of Perrigo’s ADEA allegations. The hardship
Perrigo’s noncompliance has caused School District, however, occurs early in the case and does
not substantially exceed the ordinary burdens of litigation.15 Second, Perrigo’s failure to comply
with a court order necessarily interferes with effective administration of justice. Third, the Court
understands that Perrigo is pursuing this action pro se and has demonstrated his effort to obey the
Court’s instruction to issue a new summons addressed to School District’s proper agent for
service. But Perrigo offers no excuse or explanation for his failure to comply with the Court’s
directive that he send with that summons a revised complaint. As such, Perrigo has failed to
demonstrate that anyone other than himself is culpable for the failure to fully comply with this
Court’s order. Fourth, the Court warned Perrigo that the sanction for noncompliance would be
dismissal. Finally, the Court finds dismissal without prejudice to be an available lesser sanction.
Given Perrigo’s partial compliance and the relatively minor hardship Perrigo’s noncompliance
has caused School District, the Court favors the lesser sanction of dismissal without prejudice.
Because the Court dismisses Perrigo’s claims under Rule 41(b), the Court declines to
consider School District’s arguments for dismissal under Rules 12(b)(4) and (5).
15

The Court is mindful that it, as well as Defendant, is entitled to have Plaintiff’s claims stated and served
in a justiciable manner. Here, however, the hardship caused by Perrigo’s single incident of noncompliance is not
comparable to the hardships suffered in other cases meriting dismissal. See Rogers v. Andrus Transp. Servs., 502
F.3d 1147, 1152 (10th Cir. 2007) (finding defendant “considerabl[y] burden[ed]” by plaintiff’s failure to prosecute
her case where defendant had already conducted trial preparations); Santistevan v. Colorado School Of Mines, 150
Fed.Appx. 927, 929 (10th Cir. 2005) (citing plaintiff’s multiple failures to appear and respond to court orders as
support for decision to affirm district court’s dismissal with prejudice under Rule 41(b)).

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IT IS THEREFORE ORDERED that Defendant Unified School District No. 500’s
Renewed Motion to Dismiss (Doc. 18) is hereby GRANTED without prejudice.
IT IS SO ORDERED.
Dated this 23rd day of September, 2014.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

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