Schmidt v. Jefferson County Board of Education
Filing
10
MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell on 5/9/2014; 6 Motion to Dismiss is DENIED. cc:counsel (TLB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:13-CV-00694-TBR
STACEY PAYTON SCHMIDT
Plaintiff
v.
JEFFERSON COUNTY BOARD OF EDUCATION
Defendant
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendant Jefferson County Board of
Education’s Rule 12(b)(5) Motion to Dismiss. (Docket No. 6.) Plaintiff Stacey Payton
Schmidt has responded. (Docket No. 7.) For the reasons that follow, Defendant’s
Motion will be DENIED.
BACKGROUND
Plaintiff filed her Complaint in this matter on July 9, 2013, claiming that her
employment was unlawfully terminated by Defendant in violation of the Employee
Retirement Income Security Act (ERISA), 29 U.S.C. § 1140.
(Docket No. 1.)
Summons was issued the following day, but Defendant was not served with Plaintiff’s
Complaint and summons until April 10, 2014, some 275 days after her Complaint was
filed. Defendant now moves to dismiss this action pursuant to Federal Rule of Civil
Procedure 12(b)(5) on the basis that Plaintiff failed to perfect service within the 120-day
period prescribed by Rule 4(m).
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DISCUSSION
Federal Rule of Civil Procedure 12(b)(5) provides that a complaint may be
attacked for insufficient service of process. A Rule 12(b)(5) motion is the proper
vehicle for challenging the failure to deliver a summons and complaint in accordance
with Rule 4(m). See generally 5B CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE
AND PROCEDURE CIVIL §
1353 (3d ed.). Rule 4(m) states, in pertinent part:
If a defendant is not served within 120 days after the
complaint is filed, the court—on motion or on its own after notice
to the plaintiff—must dismiss the action without prejudice
against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an
appropriate period.
The U.S. District Court for the Eastern District of Kentucky has succinctly summarized
Rule 4(m) as follows:
Rule 4(m)’s first sentence gives the Court discretion to
dismiss the action or allow Plaintiffs additional time—the court
“must dismiss the action . . . or order that service be made within
a specified time.” (emphasis added). The Rule’s second sentence
eliminates the Court’s discretion where good cause is shown—if
the Plaintiffs show “good cause for the failure, the court must
extend the time for service for an appropriate period.” (emphasis
added). Thus, the Court must first determine whether there is
good cause for Plaintiffs’ failure to timely execute service. If not,
the Court must determine in its discretion whether to dismiss the
action or allow Plaintiffs additional time.
Bradford v. Bracken County, 767 F. Supp. 2d 740, 753 (E.D. Ky. 2011).
A plaintiff bears the burden of showing good cause under this Rule. Id. (citing
Habib v. Gen. Motors Corp., 15 F.3d 72, 73 (6th Cir. 1994); Williams v. Vogelpohl, 181
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F.3d 106, 1999 WL 96748, at *2 (6th Cir.1999) (unpublished table decision)). Though
Rule 4(m) does not define “good cause,” the Sixth Circuit has required “at least
excusable neglect.” Id. (citing Stewart v. Tenn. Valley Auth., 238 F.3d 424, 2000 WL
1785749, at *1 (6th Cir. 2000) (unpublished table decision)). “Neglect exists where the
failure to do something occurred because of a simple, faultless omission to act, or
because of a party’s carelessness.” Turner v. City of Taylor, 412 F.3d 629, 650 (6th Cir.
2005) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380,
388 (1993)). “[W]hether a case of neglect was excusable is at bottom an equitable one,
taking account of all relevant circumstances surrounding the party’s omission.” Id.
(quoting Pioneer, 507 U.S. at 395). Relevant considerations include “the danger of
prejudice to the [non-moving party], the length of delay and its impact on judicial
proceedings, the reason for the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in good faith.” Id. (alteration in
original) (quoting Pioneer, 507 U.S. at 395).
Plaintiff states that service was attempted through the Jefferson County Sheriff’s
Department. (Docket No. 7, at 1-2.) After some time had passed, Plaintiff’s counsel
discovered that service had not been had and that the Sheriff’s Department had no
record of the summons. (Docket No. 7, at 1-2.) At that point, counsel sought to correct
the problem and promptly hand-delivered a new copy of the summons to the Sheriff’s
Department for service on Defendant. (Docket No. 7, at 2.)
The Court is satisfied that Plaintiff’s delay in effecting service was the result of
neglect. The Court is further satisfied that this neglect is excusable for several reasons.
First, there is nothing to suggest any impropriety in the delay in effecting service.
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Second, Defendant now has properly been brought into this case and is defending this
action.
Third, the delay of roughly five months, while significant, is not unduly
excessive. Fourth, this action appears to be well within the statute of limitations; thus,
even if the Court were to dismiss this action without prejudice, Plaintiff could simply
refile her Complaint.
In sum, the Court finds little danger of prejudice to Defendant under these
circumstances. The Court also recognizes that dismissal would serve little practical
purpose and, instead, would serve only to further delay the eventual resolution of this
matter. Thus, the Court finds that Plaintiff has shown good cause for the failure to
effect service within the 120-day period set out in Rule 4(m).
CONCLUSION
Having considered Defendant’s Motion and being otherwise sufficiently
advised, for the foregoing reasons;
IT IS HEREBY ORDERED that Defendant’s Rule 12(b)(5) Motion to
Dismiss, (Docket No. 6), is DENIED.
Date:
cc:
May 9, 2014
Counsel
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