Moore v. United Parcel Servce et al

Filing 20

MEMORANDUM AND ORDER dismissing this case without prejudice pursuant to Rule 4(m). Signed by Chief Judge J. Thomas Marten on 2/27/15. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

Demetrius Moore,
Plaintiff,
vs.

Case No. 14-2122-JTM

Teamsters Local 41,
Defendant.

MEMORANDUM AND ORDER
This is an action by plaintiff Demetrius Moore against his former employer, United
Parcel Service and against his union, Teamsters Local 41. Moore settled his claim with UPS
(Dkt. 17). Shortly after the settlement, the United States Magistrate Judge issued an Order
to Show Cause, on or before February 24, 2015, why the case against Local 41 should be
dismissed, given the failure to obtain service against the union. Rather than promptly and
separately obtaining service against Local 41, on February 23, 2015, the day before the
deadline in the show cause order, Moore sought leave for an extension of time to serve
pursuant to FED.R.CIV.PR. 4.
The only reason cited for the failure to obtain services is counsel’s representation that
“I am involved in major litigation involving the Taylor v. Cristo Rey High School. Case No:4-

14-cv-00733.”1 (Dkt. 19, at 4). This response is plainly inadequate. The referenced civil
action is a relatively uncomplicated civil rights action filed by counsel on August 18, 2014
in the United States District Court for the Western District of Missouri. The Complaint
(Dkt. 18) is uncomplicated, and is largely a quotation from plaintiff’s first-person narrative
of his employment history. The docket shows only four entries. The only pleading
otherwise filed by the plaintiff is counsel’s request, on December 15, 2014, for more time
to obtain service of process.
In short, counsel has done nothing in Taylor that justifies the complete inaction in
this case. The Response further states that “counsel could present the Court with excuses
as to why service” against the union “did not occur within the time prescribed,” but he
“will not waste the Court’s time.” (Dkt. 19, at 2). Instead, the Response simply asserts that
the existence of the “press of [the Taylor] litigation” itself constitutes “‘excusable neglect’
or a mistake.” (Dkt. 19, at 6).
The failure to justify the delay is fatal to plaintiff’s request. It is not “wast[ing] the
Court’s time” to articulate a rationale for the delay — it is plaintiff’s burden to show
grounds for an extension under Rule 4(m). See Riddle v. Wichita Pub. Sch., 04-1400-MBL,
2005 WL 1563444, *4 (D. Kan. 2005).
Rule 4(m) provides that the court “must dismiss the action without prejudice” where
the defendant fails to obtain timely service. (Emphasis added). This requirement is excused
The Response to the Order to Show Cause also cites the Apostle Paul’s
observation, “That which I strive mightily not to do, is that which I do daily.” Rom. 7:19
(Dkt. 19, at 1).
1

2

only if the plaintiff shows “good cause” for the failure. The plaintiff’s reliance on the
excusable neglect standard of FED.R.CIV.PR. 60(b)(1) is misplaced. “To establish ‘good cause
under Rule 4(m)],’ a plaintiff must make a showing greater than ‘excusable neglect.’” Value
Place Franchise Serv. v. Hugh Black-St. Mary Enterp., No. 14-1152-DDC, 2015 WL 225790, at
*3 (D. Kan. 2015) (citing Arey v. Progressive Halcyon Ins. Corp., No. 05-2553-JWL, 2007 WL
1018798, at *2 (D. Kan. Apr. 3, 2007) (citing In re Kirkland, 86 F.3d 172, 174 (10th Cir.1996)).
In evaluating questions under Rule 4(m), the court conducts a two-step inquiry.
First, the court determines if the plaintiff has met his burden of showing good cause for an
extension. Second, even if the plaintiff fails to show good cause, the court may grant an
extension under limited circumstances. Relevant factors to this second inquiry include
whether the defendant had actual notice of the lawsuit, the danger of prejudice to the
defendant, and the applicable statute of limitations. See Espinoza v. United States, 52 F.3d
838, 841 (10th Cir.1995); Blackmon v. U.S.D. 259 Sch. Dist., 769 F.Supp.2d 1267, 1275
(D.Kan.2011) (citing Mehus v. Emporia State Univ., 295 F.Supp.2d 1258, 1273-74 (D. Kan.
2004). Courts should also consider the length of the delay. See Turner v. City of Taylor, 412
F.3d 629, 650 (6th Cir. 2005).
Here, the plaintiff has failed to show good cause for an extension. Generally,
“inadvertence of counsel” will not justify relief under Rule 4(m). See Moncrief v. Stone, 961
F.2d 595, 597 (6th Cir. 1992); Jackson v. Chandler, 463 Fed.Appx. 511, 513 (6th Cir.2012)
(“Clients are held accountable for the acts and omissions of their attorneys, and attorney
inadvertence generally does not constitute excusable neglect.”). See also Reese v. University
3

of Rochester, No. 04-6117T, 2005 WL 1458632, *1 (W.D.N.Y. June 25, 2005) (“Good cause will
not be found where, as is the case here, the omission is the product of an attorney's
inadvertence, neglect, mistake or misplaced reliance.”).
Nor has plaintiff demonstrated a basis for a discretionary extension under the
second step of the Rule 4(m) inquiry. First, as discussed above, the supposed rationale for
the delay is solely attributable to counsel. Second, the rationale is plainly insufficient. The
Taylor litigation in Missouri is a shell; almost nothing of importance has happened in the
case, beyond the filing of a Complaint which simply repeats verbatim Moore’s narrative
of his work history, coupled with boilerplate legal language. Moreover, Taylor was filed
nearly a half year after this case. The standard, 120-day period for filing expired well before
the Complaint in Taylor was even filed.
This leads to another rationale for denial of the Motion to Extend — the truly
extraordinary delay involved. Courts addressing motions under Rule 4(m) typically extend
the 120-day service period by an additional 30 or sometimes 60 days. The present case
commenced with the filing of the Complaint on March 14, 2014. (Dkt. 1). Accordingly, the
plaintiff has had nearly a year to obtain proper service.
Finally, the court finds the danger of prejudice to the defendant from that delay of
an additional year. Many of the incidents cited in the complaint are alleged to have
occurred in the 1990s and 2000s. The continued passage of time works real prejudice to the
defendant union in its ability to marshal evidence against such claims.

4

IT IS ACCORDINGLY ORDERED this 27th day of February, 2015, that the present
action is hereby dismissed without prejudice pursuant to Rule 4(m).
s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

5