Vives v. Children's Hospital, Inc.
Filing
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ORDER denying 12 Motion to Dismiss. Further ordered that the defendant shall file an answer to the plaintiff's amended complaint within 21 days of this order. Signed by Judge Susie Morgan. (cbn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARIA TERESA VIVES,
Plaintiff
CIVIL ACTION
VERSUS
No. 11-2080
CHILDREN’S HOSPITAL, INC.,
Defendant
SECTION “E”
ORDER AND REASONS
Before the Court is defendant Children’s Hospital, Inc.’s (“Children’s”) Motion to
Dismiss.1 For the reasons set forth below, the motion is denied.
BACKGROUND AND PROCEDURAL HISTORY
This dispute arises out of plaintiff Maria Teresa Vives, MD’s (“Dr. Vives”) allegations
of discrimination and harassment against Children’s. Dr. Vives is a current employee of
Children’s, and has worked there since 2000.
Before initiating this action, Dr. Vives completed an Equal Employment Opportunity
Commission (“EEOC”) Charge Questionnaire alleging discrimination and harassment by
Children’s on November 30, 2009, and Dr. Vives’s formal EEOC charge against Children’s,
again alleging discrimination and harassment, was received by the EEOC on December 18,
2009.2 Children’s claims it was notified of these allegations by the EEOC on December 22,
2009.3 After Dr. Vives supplied additional information to the EEOC on July 6, 2010, the
EEOC issued Dr. Vives a right-to-sue (“RTS”) letter on May 24, 2011. On August 22, 2011,
1
R. Doc. 12.
2
See R. Doc. 1 (Dr. Vives’ Complaint); R. Doc. 6 (Dr. Vives’ Amended Complaint).
3
R. Doc. 12-2.
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Dr. Vives filed a Complaint with this Court, naming Tulane University as defendant in the
caption of the Complaint, but naming Children’s as defendant throughout the body of the
Complaint. On August 29, 2011, Dr. Vives filed a motion to amend/correct her complaint,
and on September 1, 2011, that motion was granted, and Dr. Vives’ Amended Complaint,
naming Children’s as defendant in both the caption and the body of the Amended
Complaint, was filed that day.4 The Amended Complaint was mailed by certified mail to
Children’s’ agent for service of process, Steve Worley (“Worley”), with a request for waiver
of service, and Dr. Vives claims that Worley received the Amended Complaint on September
7, 2011, but refused to acknowledge it or waive service. Counsel for Dr. Vives apparently
thought that formal service had been waived, and did not attempt to serve Children’s again
for several months.5
On January 5, 2012, Magistrate Judge Karen Wells Roby issued an Order to Show
Cause to Dr. Vives, ordering her to show good cause why Children’s had not yet been served,
more than 120 days after the Amended Complaint against Children’s was filed.6 On January
25, 2012, Dr. Vives filed a response to the Order to Show Cause, informing the Court that
on January 17, 2012, Worley was personally served, through a process server, with the
Amended Complaint.7 On January 27, 2012, Magistrate Judge Roby issued an Order stating
4
See R. Doc. 4 (Dr. Vives’ Motion to Amend/Correct Complaint); R. Doc. 5 (Order Granting
Motion to Amend/Correct Complaint); R. Doc. 6 (Dr. Vives’ Amended Complaint).
5
See R. Doc. 15 (Dr. Vives’ Opposition to the M otion to Dism iss).
6
R. Doc. 11 (citing Fed. R. Civ. P. 4(m)).
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R. Doc. 10 (Dr. Vives’ Response to Order to Show Cause); R. Doc. 9 (Returned Summons). Dr.
Vives’ response states that W orley was personally served on January 18, 2012, but the returned summons
clearly states that he was personally served on January 17, 2012.
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that Dr. Vives had satisfied the Order to Show Cause.8 On February 7, 2012, Children’s
filed this Motion to Dismiss.
Children’s argues that Dr. Vives’ Amended Complaint should be dismissed pursuant
to Federal Rule of Civil Procedure 12(b)(5) for failure to timely serve the Amended
Complaint in accordance with Rule 4 and pursuant to Rule 12(b)(6) for failure to state a
claim upon which relief can be granted because the Amended Complaint was also untimely
under Title VII.
Dr. Vives contends that her Amended Complaint should not be dismissed for what
she characterizes as curable technical defects and typographical errors. Dr. Vives does not
dispute the fact that she was late in filing her Amended Complaint against Children’s under
Title VII, nor does she dispute the fact that she was late in serving that Amended Complaint
on Children’s under Rule 4(m); instead, she simply argues that her mistakes are not so
egregious or outrageous that her Amended Complaint should be dismissed.
ANALYSIS
I.
The 12(b)(5) Motion to Dismiss for Failure to Timely Serve
“Federal Rule of Civil Procedure 12(b)(5) provides for dismissal of a claim if service
of process was not timely made in accordance with Federal Rule of Civil Procedure 4 or was
not properly served in the appropriate manner.” Wallace v. St. Charles Parish Sch. Bd.,
2005 WL 1155770, at *1 (E.D. La. 2005). “In the absence of valid service of process,
proceedings against a party are void.” Aetna Bus. Credit, Inc. v. Universal Decor & Interior
Design, 635 F.2d 434, 435 (5th Cir. 1981). The party responsible for serving has the burden
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R. Doc. 11.
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of showing that service was valid in the face of a 12(b)(5) challenge. Signs Supplies v. Dep’t
of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990).
Rule 4(m) provides in 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.
Fed. R. Civ. P. 4(m). Thus, a Court faced with a defendant’s Rule 12(b)(5) motion to dismiss
for failure to timely serve must undertake a two part inquiry. Thompson v. Brown, 91 F.3d
20, 21 (5th Cir. 1996). First, the Court must determine if the plaintiff can show “good
cause” for its failure to timely serve. If good cause exists, the Court is required to extend the
120 day window for service of process. Id. “If good cause does not exist, the Court may, in
its discretion, decide whether to dismiss the case without prejudice or extend time for
service.” Id. “The district court enjoys a broad discretion in determining whether to
dismiss an action for ineffective service of process.” George v. U.S. Dep't of Labor, 788
F.2d 1115, 1116 (5th Cir. 1986).
The Court does not need to address whether Dr. Vives has demonstrated “good
cause” for her failure to properly serve Children’s within the 120 day window provided by
Rule 4(m). Even assuming, for the sake of argument, that “good cause” did not exist for the
untimely service, the Court has broad discretion in determining whether dismissal for
failure to timely serve is warranted, and also whether to extend time for service. Magistrate
Judge Roby’s Order seems to be an exercise of the Court’s discretion to extend the period
for service beyond the normal 120 days. Service has been perfected in this case - albeit late and the Court does not find that dismissal is warranted for the now-repaired defect in
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service. The Court does not condone the actions of Dr. Vives’ counsel, but recognizes that
Dr. Vives herself did not cause the delay in service, that Children’s would not be prejudiced
in any meaningful way by allowing this late service to stand, and that there is no indication
that the failure to timely serve was intentional. See Millan v. USAA Gen. Indem. Co., 546
F. 3d 321, 326-27 (5th Cir. 2008). The Court will not dismiss Dr. Vives’ Amended
Complaint on the grounds that it was served outside of Rule 4(m)’s 120 day window.
II.
The 12(b)(6) Motion to Dismiss for Failure to State a Claim
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a plaintiff’s claims
if the plaintiff fails to set forth a factual allegation in support of her claim that would entitle
her to relief (i.e. for “failure to state a claim”). See, e.g. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). Those factual
allegations “must be enough to raise a right to relief above the speculative level.” Gonzalez
v. Kay, 577 F.3d 600, 603 (5th Cir.2009) (quoting Twombly, 550 U.S. at 555). “To survive
a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id.
In making this assessment, the Court will not look beyond the factual allegations in
the pleadings, and the Court must accept all well-pleaded facts as true and construe the
factual allegations in the complaint in the light most favorable to the plaintiff. See, e.g.
Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir.1999). “Dismissal is appropriate when the
complaint ‘on its face show[s] a bar to relief.’” Cutrer v. McMillan, 308 Fed.Appx. 819, 820
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(5th Cir. 2009) (quoting Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)).
Under Title VII of the Civil Right Act of 1964, “[s]ection 2000e-5(f)(1) requires a civil
action be commenced within ninety days after the plaintiff has received a right-to-sue notice
from the EEOC.” Harris v. Boyd Tunica, Inc., 628 F.3d 237, 239 (5th Cir. 2010) (citing 42
U.S.C. § 2000e-5(f)(1)). The Fifth Circuit in Harris goes on to explain:
The ninety-day filing requirement is not a jurisdictional prerequisite, but
more akin to a statute of limitations. Espinoza v. Mo. Pac. R.R. Co., 754 F.2d
1247, 1248 n. 1 (5th Cir.1985). Thus, the ninety-day filing requirement is
subject to equitable tolling. Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S.
345, 349 n. 3, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). We have previously
stated that equitable tolling applies only in “rare and exceptional
circumstances.” [Teemac v. Henderson, 298 F.3d 452, 457 (5th Cir. 2002)],
(internal quotation marks and citation omitted). Courts have typically
extended equitable tolling where “the claimant has actively pursued his
judicial remedies by filing a defective pleading during the statutory period, or
where complainant has been induced or tricked by his adversary's misconduct
into allowing the filing deadline to pass.” Irwin v. Dep't of Veterans Affairs,
498 U.S. 89, 96 & nn. 3–4, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); see Teemac,
298 F.3d at 457.
Id. Here, there is no question that Dr. Vives’ Title VII civil action was not “commenced”
against Children’s until September 1, 2011, and even giving the plaintiff the benefit of the
doubt as to the date she received her RTS letter from the EEOC, which was mailed on May
24, 2011, the formal commencement of the action against Children’s is almost certainly
outside of this 90 day window. See Taylor v. Books a Million, Inc., 296 F.3d 376, 380 (5th
Cir. 2002) (holding that when the actual receipt date of a RTS letter is not known, the Court
can presume a receipt date of anywhere between three to seven days after the letter is
mailed).
The Court is mindful of the fact that “[u]nder our system of representative litigation,
each party is deemed bound by the acts of [her] lawyer-agent” and that “the principles of
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equitable tolling . . . do not extend to what is at best a garden variety claim of excusable
neglect.” Harris, 628 F.3d at 240 (quoting Irwin, 498 U.S. at 92, 96). That said, dismissal
in this instance would be an “extreme sanction,” as it would effectively cut off Dr. Vives’
ability to bring her suit altogether. See Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191
(5th Cir. 1992) (“Where further litigation of [a] claim will be time-barred, a dismissal
without prejudice is no less severe a sanction than a dismissal with prejudice.”) (quoting
McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 556 (5th Cir. 1981). The Court is
persuaded by the fact that Dr. Vives did file a pleading within the 90 day window - albeit a
defective one - and despite Children’s’ arguments to the contrary, this defective pleading
does appear to be a simple mistake.
As with the issue of Dr. Vives’ failure to timely serve her Amended Complaint, the
Court is not condoning the actions of Dr. Vives’ counsel, but given the exceptional
circumstances presented here, the Court finds that equitable tolling of the ninety day
window is appropriate. Dr. Vives’ motion to amend her Complaint was filed on the ninetyeighth day after her RTS letter was mailed. Granting Dr. Vives the benefit of the Fifth
Circuit’s generous seven day “presumption of receipt” in Taylor, this would mean that Dr.
Vives attempted to “commence” her action against Children’s only one day outside of the
statutory window prescribed by Title VII. The Court will not dismiss Dr. Vives’ Amended
Complaint for such a minor defect, even if it has the discretion to do so.
III.
Conclusion
Accordingly, IT IS ORDERED that the Motion to Dismiss be and hereby is
DENIED.
IT IS FURTHER ORDERED that Children’s shall file an Answer to Dr. Vives’
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Amended Complaint within twenty-one (21) days of the entry of this Order.
6th
New Orleans, Louisiana, this ___ day of July, 2012.
_____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
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