Chenevert et al v. Algiers Charter School Association, Inc. et al
Filing
38
ORDER & REASONS re Defendants Algiers Charter School Association ("ACSA") and Monica Boudouin's ("Boudouin") (collectively "Defendants") 15 Motion to Dismiss Under Rule 12(b)(5): For the reasons stated above, the Court will deny Defendant's motion seeking dismissal based upon Plaintiffs' failure to timely effect service, and the Court will exercise its discretion and extend the time to effect service to encompass the time when Defendants were actual ly served in this matter. Accordingly, IT IS HEREBY ORDERED that Defendants' Motion to Dismiss Under Rule 12(b)(5) is DENIED; IT IS FURTHER ORDERED that the Court extends the time for service to encompass the time when Defendants were actually served in this matter. Signed by Judge Nannette Jolivette Brown on 8/29/2013. (rll, ) Modified on 8/30/2013 to edit doc type (rll, ).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WANDA CHENEVERT, et al.
CIVIL ACTION
VERSUS
NO. 12-2099
ALGIERS CHARTER SCHOOL ASSOCIATION,
INC., et al.
SECTION: “G”(3)
ORDER AND REASONS
Before the Court is Defendants Algiers Charter School Association ("ACSA") and Monica
Boudouin's ("Boudouin") (collectively "Defendants") "Motion to Dismiss Under Rule 12(b)(5),"1
wherein Defendants seek dismissal without prejudice of plaintiffs' claims for failure to timely serve
them. After considering the complaint, the pending motion, the memorandum in support, the
opposition, the reply, the record, and the applicable law, the Court will deny the pending motion.
I. Background
A. Factual Background
1. Allegations of Wanda Chenevert
Plaintiff Wanda Chenevert ("Chenevert") is a Caucasian female and was hired by ACSA on
or about December 10, 2005 as a kindergarten teacher at Dwight D. Eisenhower Academy of Global
Studies ("Eisenhower").2 Defendant Boudouin was employed as the principal of Eisenhower and is
an African-American woman.3 In 2007, Chenevert was promoted to the administrative position of
1
Rec. Doc. 15.
2
Rec. Doc. 1 at ¶¶ 3, 7.
3
Id. at ¶ 6.
"Master Teacher."4 At the beginning of Chenevert's second year of employment as Master Teacher,
Boudouin was assigned as principal of Eisenhower.5
Chenevert claims that at the first meeting between her and Boudouin, Boudouin "told Ms.
Chenevert she could have brought 'her own people' in to take her job but that she had decided to let
Ms. Chenevert keep her job."6 However, Plaintiff alleges that throughout the 2008-09 and 2009-10
school years, she was "harassed, humiliated and publicly embarrassed on numerous occasions" by
Boudouin, because she was Caucasian.7
In July of 2010, Chenevert claims that she was informed that she would be reassigned to new
grade levels, which would result in her no longer being eligible for certain mandatory salary
increases that she had previously received as a result of attaining National Board Certification.8
Chenevert also avers that as Chenevert's replacement, Boudouin "hired an African American teacher
who was not even certified to teach pre-kindergarten or kindergarten, and who was therefore
unqualified for that position."9 Chenevert contends that racial harassment continued and that her
pleas to more senior employees within ACSA about her reassignment were "to no avail."10
4
Id. at ¶ 8.
5
Id. at ¶ 14.
6
Id. at ¶ 15.
7
Id. at ¶ 16.
8
Id. at ¶¶ 22-23.
9
Id. at ¶ 25.
10
Id. at ¶¶ 31-32.
2
Chenevert claims that due to the reassignment and the alleged harassment, she was
constructively terminated and/or subjected to a hostile work environment.11 Chenevert maintains that
in November 2010 she "was forced to obtain employment at another school at a much lower rate of
pay because of the scarcity of jobs available during the school term."12
2. Allegations of Monica Knauer
Plaintiff Monica Knauer ("Knauer"), also a Caucasian woman, was hired by ACSA in
December 2005 as a Master Teacher.13 She similarly claims that she was frequently harassed and
threatened by Boudouin on account of her race.14 On May 24, 2010, Knauer was notified that she
was terminated from her employment because she was a "disgruntled employee."15
B. Procedural Background
Prior to filing suit in this Court, Chenevert and Knauer (collectively, "Plaintiffs") timely filed
charges of employment discrimination with the U.S. Equal Employment Opportunity Commission
("EEOC"), and on or about May 16, 2012, the EEOC issued each party a Notice of Right to Sue
letter, which they both received on May 19, 2012.16 On August 15, 2012, Plaintiffs filed suit in this
action pursuant to Title VII of the Civil Rights Act and 42 U.S.C. § 1981, and the matter was
assigned to Judge Helen G. Berrigan, Section "C," but was immediately reassigned to Judge Jane
Triche Milazzo, Section "H."
11
Id. at ¶¶ 33-34.
12
Id. at ¶ 35.
13
Id. at ¶ 41.
14
Id. at ¶ 45.
15
Id. at ¶ 47.
16
Id. at ¶¶ 56-57.
3
On November 14, 2012, Magistrate Judge Knowles issued an order informing Plaintiffs that
they were required to report in person on the status of this case "and show cause why service has not
been completed and/or why this matter should not be dismissed for failure to prosecute."17 This call
docket was continued on December 5, 2012 and January 9, 2013, with the Magistrate Judge
notifying Plaintiffs of their failure to serve Defendants in each order.18 Plaintiffs requested summons
issued as to all defendants on February 5, 2013.19 Summons was issued on February 6, 2013, and
returned as executed on April 8, 2013 as to all defendants.20 On April 24, 2013, Defendants filed the
pending motion.21 Plaintiffs filed an opposition on May 28, 2013.22 With leave of court, Defendants
filed a reply.23
On May 28, 2013, Plaintiffs filed a motion seeking an extension of time to serve
Defendants,24 and Defendants opposed the motion.25 On July 8, 2013, Judge Milazzo denied
Plaintiffs' motion, reasoning that it raised the same issues pending before the court in Defendants'
17
Rec. Doc. 5.
18
See Rec. Doc. Nos. 6, 7.
19
Rec. Doc. 8.
20
Rec. Doc. Nos. 10, 13, 14.
21
Rec. Doc. 15.
22
Rec. Doc. 26.
23
Rec. Doc. 32.
24
Rec. Doc. 27.
25
Rec. Doc. 30.
4
motion to dismiss.26 On July 19, 2013, Judge Milazzo disqualified herself from acting in this case,
and the matter was transferred to Section "G."27
II. Parties' Arguments
A. Defendants' Arguments in Support of Dismissal
In support of the pending motion, Defendants note that they were served with summons on
April 5, 2013, more than seven months after the filing of the complaint and 113 days beyond the
deadline imposed under Federal Rule of Civil Procedure 4(m).28 Further, Defendants emphasize that
Plaintiffs only first took steps toward service on January 2, 2013, after two call docket notices and
21 days after their deadline to serve Defendants.29 As such, Defendants argue that under Rule 4(m),
Plaintiffs must show "good cause" to avoid dismissal without prejudice.30 Defendants contend that
there is no good cause here and dismissal is warranted based on "the excessive delay of more than
seven months from filing this suit, their failure to seek an extension prior to the expiration of the
120-day deadline, their notice of possible dismissal through the Court’s docket calls, and the
prejudice that could result to Defendants."31
B. Plaintiffs' Arguments in Opposition to Dismissal
In opposition to the pending motion, Plaintiffs note that after they filed charges of
discrimiantion with the EEOC, the charges were "vigorously defended with both defendants
26
Rec. Doc. 33.
27
Rec. Doc. 34.
28
Rec. Doc. 15-1 at p. 1.
29
Id. at p. 2.
30
Id. at pp. 2-3 (citing Millan v. USAA Gen Indem. Co., 546 F.3d 321, 325 (5th Cir. 2008)).
31
Id. at p. 3.
5
submitting affidavits and lengthy briefs to the EEOC."32 Therefore, Plaintiffs claim that "Defendants
cannot be prejudiced in this matter because they were aware of and vigorously defended these same
charges since their inception."33
Plaintiffs also explain that shortly after the filing of this suit, their counsel withdrew from
his prior law firm; the case files he intended to take with him were boxed and indexed, but this
particular case was not included in that index.34 Plaintiffs' counsel opines that this may be because
he is the husband of Plaintiff Chenevert, and therefore this case was not entered into the firm's
regular filing system.35 Notices of counsel's new address were "set up in reliance on the index."36
Plaintiffs' counsel claims that it was not until this matter was placed on the Court's call docket that
his oversight was detected. After notification, Plaintiffs' counsel claims he issued a letter to
Defendants enclosing a copy of the suit with a waiver of service and summons form, but neither
defendant responded.37 In addition, Plaintiff's counsel informs the Court that during this entire time
he was also being treated for serious medical problems including follow up treatment for a heart
attack and two cancer surgeries.38
32
Rec. Doc. 26 at p. 3.
33
Id.
34
Id.
35
Id.
36
Id. at pp. 3-4.
37
Id. at p. 4.
38
Id.
6
Relying on a decision from the District of Arizona, Plaintiffs claim that Rule 4 should be
"given a liberal and flexible construction."39 Further, Plaintiffs again claim that through the EEOC
process, Defendants were on notice of this litigation and therefore were not prejudiced by the
untimely service.40
C. Defendants' Reply
In reply, Defendants produce a time line of events relative to this matter. Defendants note
that Plaintiffs filed suit on the last possible day before their statute of limitations would have
expired, requested issuance of summons on the last possible day, but took no action to have the
summons served, served Defendants with the suit two months after summons was issued and 230
days after filing suit, and requested a continuance of the pending motion on the day before its
submission date, after failing to timely oppose the motion, citing medical reasons.41 Further,
Defendants argue that Plaintiffs' given reasons do not meet the standard for good cause as articulated
by the Fifth Circuit.42
Specifically, Defendants argue that the Fifth Circuit has previously held that a failure of
communication between attorneys will not suffice to create good cause under Rule 4(m).43
Defendants also contend that district courts from within this Circuit, and outside this Circuit, have
been resistant to find that an attorney's illness provides good cause for untimely service.44
39
Id. at p. 5 (citing Justice v. Lyng, 716 F.Supp. 1567, 1569-70 (D. Ariz. 1988)).
40
Id.
41
Rec. Doc. 32 at pp. 1-2.
42
Id. at p. 3 (citing Lambert v. United States, 44 F.3d 296, 299 (5th Cir. 1995)).
43
Id. at pp. 3-4 (citing Flores v. Sec. of the Navy, 51 F.3d 1044 (5th Cir. 1995)).
44
See id. at pp. 4-5 (citing cases).
7
Moreover, Defendants argue that the record reflects that the delay was not caused by the
reasons proposed by Plaintiffs, but instead by Plaintiffs' counsel's unfamiliarity with federal
procedure. Defendants note that Plaintiffs' counsel did not request issuance of summons when suit
was filed, and only requested issuance once the matter was placed on the call docket.45 Thereafter,
even after the Clerk of Court issued summons on February 6, 2013, Plaintiffs' counsel made no effort
to have it served until April 5, 2013.46 Finally, Defendants again note that counsel failed to timely
oppose the pending motion or seek additional time to oppose the motion until the day before the
submission date.47 Defendants recognize that even in the absence of good cause, this Court may, in
its discretion, still allow Plaintiffs leave to untimely serve their complaint, but request that the Court
not.48
Additionally, Defendants argue that they have been prejudiced by this delay, and claim that
the Fifth Circuit has expressly held that actual notice is insufficient to satisfy Rule 4's standards.49
Defendants contend that separate from the issue of notice, the delay risks witnesses becoming
unavailable, memories becoming less reliable, and documents becoming more difficult to locate.50
Finally, Defendants argue that the Court should not consider that Plaintiffs' claims may now be time-
45
Id. at p. 6.
46
Id. at p. 7.
47
Id.
48
Id.
49
Id. (citing Way v. Mueller Brass Co., 840 F.2d 303, 306 (5th Cir. 1988)).
50
Id. at p. 8.
8
barred if dismissed, because the "good cause" inquiry relates not to the severity of the consequences
faced, but rather to the reason the party failed to perfect service.51
III. Law and Analysis
A. Law- Federal Rule of Civil Procedure 4(m)
Federal Rule of Civil Procedure 4(m) provides:
Time Limit for Service. 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.
In Newby v. Enron Corp.,52 the Fifth Circuit explained the inquiry into whether "good cause" exists:
To establish good cause, a plaintiff has the burden of demonstrating “at least as
much as would be required to show excusable neglect...." Winters v. Teledyne
Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir.1985). "[S]imple inadvertence
or mistake of counsel or ignorance of the rules usually does not suffice...." Id. In
addition, "some showing of 'good faith on the part of the party seeking an
enlargement and some reasonable basis for noncompliance within the time specified'
is normally required." Id. (quoting Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1165 (1969)). It is "irrelevant that the defendant not served
within the 120–day period later finds out about the suit or is in fact later served, so
long as there was not good cause for the failure to serve within the 120 days." Id. at
1305–06.53
Further, "even if good cause is lacking, the court has discretionary power to extend time for
service."54 It is only when good cause exists that a district court must extend the time for service.55
51
Id. at p. 9 (citing Pellegin & Levine, Chartered v. Antoine, 961 F.2d 277, 283 (D.C. Cir. 1992)).
52
284 F. App'x 146 (5th Cir. 2008).
53
Id. at 149 (emphasis and alterations in original).
54
Id. (citing Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996)).
55
Id.
9
B. Analysis
1. Existence of "Good Cause"
As noted above, if good cause exists, this Court must extend the time for service. Plaintiffs
have asserted two grounds they allege demonstrate good cause for their delay. First, Plaintiffs claim
that their counsel left his law firm and inadvertently did not include this case on his index, and
therefore he forgot to take any action. This is clearly a "mistake of counsel," which the Fifth Circuit
has expressly held is insufficient to establish good cause in this context.56 Further, it seems
implausible that this was even the actual reason for the delay, as Plaintiff Chenevert's husband is
Plaintiffs' counsel; as such, it appears unlikely that this case would slip his mind. If his failure
instead was caused by his unfamiliarity with this Court's rules and procedures, that as well would
fail to establish good cause.57
Second, Plaintiffs' state that their counsel had serious medical issues during the pendency
of this suit, which caused him "to miss a great deal of work and reduced [his] work hours."58
However, Plaintiffs do not expressly contend that their counsel's illness was the cause of the delay.59
The record reflects that despite counsel's medical issues, he still took action in this suit. For instance,
on February 5, 2013, the last day before the call docket, Plaintiffs' counsel requested that summons
be issued, but took no action to have them served.60 It was only on April 5, 2013 that Plaintiffs'
56
Winters, 776 F.2d at 1306.
57
See id.
58
Rec. Doc. 26 at p. 4.
59
See id.
60
Rec. Doc. 8.
10
counsel formally served the summons and complaint.61 As Plaintiffs' counsel was taking action in
this suit despite his illness, this Court finds that there was no reason that counsel could not have
timely served the Defendants. Again, "simple inadvertence or mistake of counsel or ignorance of
the rules usually does not suffice" to establish good cause.62 Likewise, district courts within this
Circuit have declined to find good cause where plaintiffs did not "adequately explain why their
attorney's illness prevented [them] from [timely] serving" the defendants.63 As such, the Court finds
that the Plaintiffs have not established good cause to require this Court to extend the time for service
under Rule 4(m).
2. Extension of Time to Serve in the Absence of Good Cause
As noted above, even in the absence of good cause a district court has the discretion to
extend the period of time for service.64 A district court's decision to not grant such an extension is
reviewed for an abuse of discretion.65 However, relevant here, when a dismissal without prejudice
would functionally act as a dismissal with prejudice, because the statute of limitations has run, the
Fifth Circuit will review such a dismissal under the dismissal with prejudice standard of review.66
In Berry v. CIGNA/RSI-CIGNA,67 the Fifth Circuit described how it reviews such dismissals:
61
Rec. Doc. 13; see also Rec. Doc. 32 at p. 2.
62
Winters, 776 F.2d at 1306.
63
See, e.g., Estate of White v. Hartford Life and Acc. Ins. Co., No. 07-00145, 2007 WL 7217079, at *3 (S.D.
Tex. Oct. 11, 2007).
64
See Newby, 284 F. App'x at 149.
65
Gartin, 289 F. App'x at 693.
66
Id. (citing Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992)).
67
975 F.2d 1188.
11
We will affirm dismissals with prejudice for failure to prosecute only when (1) there
is a clear record of delay or contumacious conduct by the plaintiff, and (2) the district
court has expressly determined that lesser sanctions would not prompt diligent
prosecution, or the record shows that the district court employed lesser sanctions that
proved to be futile. Additionally, in most cases where this Court has affirmed
dismissals with prejudice, we found at least one of three aggravating factors: (1)
delay caused by [the] plaintiff himself and not his attorney; (2) actual prejudice to
the defendant; or (3) delay caused by intentional conduct.68
Here, the Court acknowledges that there is a clear record of delay in this matter by Plaintiffs'
counsel, but not necessarily by Plaintiffs. Further, the Court does not find that lesser sanctions would
not prompt diligent prosecution or would prove futile, as no other sanctions have yet been imposed
or requested. Further, there is no accusation that this delay was caused by intentional conduct. These
findings all caution towards allowing the extension of time to serve.69
Finally, the Court must consider whether the delay in service caused actual prejudice to
Defendants. Defendants do not deny that they have been on notice of the allegations contained in
this suit for quite sometime, as they participated in the EEOC process. Further, Defendants do not
dispute that they were made aware of this specific action at a time before they were formally served,
when Plaintiffs' counsel issued both defendants letters which included a copy of the suit and a
waiver or service and summons form.70 However, Defendants rely on Way v. Mueller Brass Co.,71
to claim that their actual notice of this suit has no effect on their actual prejudice.72
For the following reasons, the Court finds Way inapplicable here. In Way, upon considering
68
Id. at 1192 (internal footnotes, citations, and quotations marks omitted) (alterations in original).
69
See id.
70
See Rec. Doc. 26 at p. 4.
71
840 F.2d 303 (5 th Cir. 1988).
72
Rec. Doc. 32 at p. 7.
12
whether service was effective and served upon the proper party, the Fifth Circuit held that if an
incorrect party was served "[t]he defendant's actual notice of the litigation [] is insufficient to satisfy
Rule 4's requirements."73 Here, the consideration is not whether service was made upon the proper
party, but rather if Defendants' prior knowledge of the action mitigated any prejudice they might
have suffered from untimely service. The Court finds that it did.
Additionally, Defendants claim prejudice because delays can cause "witnesses [to] becom[e]
unavailable, memories [to] becom[e] less reliable, and documents to becom[e] more difficult to
locate."74 However, Defendants only raise the possibilities of these obstacles, without actually
alleging that any of these concerns have actually occurred. As such, these concerns are merely
speculative and do not support dismissal.
Finally, the Court notes that the delay in service has not resulted in Defendants missing any
deadlines or conferences, or forced them to complete discovery in a more limited time than other
parties. Defendants' counsel participated in the scheduling conference on August 1, 2013, which
resulted in the Scheduling Order which established all deadlines, cut-off dates, and the trial date.75
Defendants have not missed the preliminary conference with the Court set for October 1, 2013, and
the June 6, 2014 trial date provides them with ample time to prepare this case and file any necessary
motions. Moreover, although not controlling, the Court notes that at least one district court within
this Circuit has extended the time for service, in the absence of good cause, even when the defendant
73
Id. at 305-06.
74
Rec. Doc. 32 at p. 8.
75
Rec. Doc. Nos. 35, 37.
13
was not served until two weeks before the discovery deadline set in the scheduling order.76
Therefore, the Court finds that dismissal of Plaintiffs' claims is not appropriate here. Accordingly,
Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5) is denied.
IV. Conclusion
For the reasons stated above, the Court will deny Defendant's motion seeking dismissal based
upon Plaintiffs' failure to timely effect service, and the Court will exercise its discretion and extend
the time to effect service to encompass the time when Defendants were actually served in this
matter. Accordingly,
IT IS HEREBY ORDERED that Defendants' "Motion to Dismiss Under Rule 12(b)(5)"77
is DENIED;
IT IS FURTHER ORDERED that the Court extends the time for service to encompass the
time when Defendants were actually served in this matter.
NEW ORLEANS, LOUISIANA, this ____ day of August, 2013.
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
76
See Estate of White, 2007 WL 7217079 at *4.
77
Rec. Doc. 15.
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?