Brown v. Weston Transportation

Filing 20

MEMORANDUM AND ORDER denying 17 Motion for Miscellaneous Relief (which the Court construes as a motion to review Order). Signed by District Judge Julie A. Robinson on 11/5/14.Mailed to pro se party Ronald E. Brown by regular and certified mail. (Certified Tracking Number: 7012 3460 0000 8262 4111) (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RONALD E. BROWN,
Plaintiff,
vs.
WESTON TRANSPORTATION,
Defendant.
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Case No. 14-2456-JAR

MEMORANDUM AND ORDER
Plaintiff Ronald Brown, proceeding pro se and in forma pauperis, filed this action
alleging violations under Title VII of the Civil Rights Act of 1964,1 and the Age Discrimination
in Employment Act of 1967.2 The Court denied Plaintiff’s Motion for Default Judgment against
Defendant Weston Transportation because he did not comply with the two-step process
contemplated by Fed. R. Civ. P. 55 (Doc. 10). Plaintiff then filed a Motion For Default (Doc.
11) and Defendant followed with a Motion for Leave to File Answer Out of Time (Doc. 12).
Magistrate Judge O’Hara granted Defendant’s motion and Defendant immediately filed an
Answer (Docs. 14, 15). This Court then denied Plaintiff’s request for default as moot (Doc. 16).
This matter is now before the Court on Plaintiff’s Motion for Miscellaneous Relief (Doc.
17), which the Court construes as a motion to review Judge O’Hara’s order permitting Defendant
to Answer out of time. In that Order, Judge O’Hara noted that although Plaintiff failed to deliver
a copy of the summons and complaint to an officer, manager, or agent of Defendant as required
by Fed. R. Civ. P. 4(h), Defendant asserts that it is willing to waive this issue in order to file its
1

42 U.S.C. § 2000e et seq.

2

29 U.S.C. § 621 et seq.

answer out of time for the sake of judicial economy. This, coupled with Defendant’s
demonstration of excusable neglect, served as justification for granting Defendant’s motion.3
Upon objection to a magistrate judge’s order on a non-dispositive matter, the district
court may modify or set aside any portion of the order that it finds to be clearly erroneous or
contrary to law.4 The court does not conduct a de novo review; rather, it applies a more
deferential standard under which the moving party must show that the magistrate judge’s order is
“clearly erroneous or contrary to law.”5 The court must affirm the magistrate judge’s order
unless the entire evidence leaves it “‘with the definite and firm conviction that a mistake has
been committed.’”6
The Court is not persuaded by Plaintiff’s contentions, and believes Judge O’Hara’s
conclusion that Defendant should be permitted to file its Answer out of time is not clearly
erroneous or contrary to law. As noted by Judge O’Hara, Plaintiff failed to effect service on
Defendant in the manner required by Rule 4(h). Plaintiff chose to serve the Defendant
corporation under Fed. R. Civ. P. 4(h)(1)(A), which allows service on a corporation by the
manner prescribed by Rule 4(e)(1), which allows service “following state law for serving a
summons in an action brought in courts of general jurisdiction in the state where the district
court is located or where service is made.”7 Kansas law allows service of process by return

3

Doc. 14.

4

Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A).

5

Fed. R. Civ. P. 72(a); Burton v. R. J. Reynolds Tobacco Co., 177 F.R.D. 491, 494 (D. Kan. 1997).

6

Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)); see Smith v. MCI Telecomm. Corp., 137 F.R.D. 25, 27 (D. Kan. 1991)
(district court will generally defer to magistrate judge and overrule only for a clear abuse of discretion).
7

Fed. R. Civ. P. 4(h)(1)(A) and 4(e)(1).

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receipt delivery, effected by certified mail.8 When serving a corporation, service is required to
be made upon an officer, manager, partner or a resident, managing or general agent, and service
by return receipt delivery must be addressed to the person at the person’s usual place of
business.9 Plaintiff prepared summons, that the Marshal served by certified mail on “Weston
Transportation,” at Defendant’s corporate address in Kansas City, Missouri, signed for by
“Leigh Ann Harstsel.”10 As set forth above, however, Kansas law requires that such service be
made on Defendant corporation’s officer, manager, partner or agent. Moreover, Defendant
waived the ineffective service issue in the interest of judicial economy, and demonstrated
excusable neglect for failing to timely answer by the date set forth in the summons.
Accordingly, Plaintiff’s motion for review shall be denied.
IT IS THEREFORE ORDERED that Plaintiff’s motion to review Magistrate Judge
O’Hara’s order of October 30, 2013 (Doc. 17) is DENIED.
IT IS SO ORDERED.
Dated: November 5, 2014
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

8

K.S.A. § 60-303(c).

9

K.S.A. §§ 60-304(e); 308(a)(2) (service outside state).

10

Doc. 8.

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