DeMolle v. CHS, Inc.

Filing 15

ORDER AND REASONS Affirming the Magistrate Judge's REPORT AND RECOMMENDATIONS 12 , and that petitioner's application for relief under 42 U.S.C. 2000e be Dismissed Without Prejudice. Signed by Judge Ivan L.R. Lemelle on 6/11/2014.(ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LAKONYA DEMOLLE

CIVIL ACTION

VERSUS

NO.: 12-3030

CHS, INC.

SECTION “B”(4)

ORDER AND REASONS
Before the Court is Plaintiff Lakonya Demolle’s Objections
(Rec. Doc. No. 13) to Magistrate Judge Karen Wells Roby’s Report
and Recommendation (Rec. Doc. No. 12), recommending dismissal
without prejudice of Plaintiff's complaint. Plaintiff's claims were
filed under the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq.; however, the instant review arises out of her failure to
properly serve the Defendant. Accordingly, and for the reasons
articulated below,
IT IS ORDERED that the findings of the Magistrate Judge (Rec.
Doc. No. 12) be AFFIRMED and that Petitioner’s application for
relief under 42 U.S.C. § 2000e et seq. be DISMISSED WITHOUT
PREJUDICE

for

failure

to

comply

with

Federal

Rule

of

Civil

Procedure (“Rule”) 4(m) and the Order issued by the Magistrate
Judge on June 20, 2013.1
FACTS AND PROCEDURAL HISTORY
On December 24, 2012, Plaintiff, Lakonya Demolle, filed a
complaint in forma pauperis under the Civil Rights Act of 1964, 42

1

We are grateful for the work on this case by Brittany A. Smith,
a Tulane University Law School extern with our Chambers.

U.S.C. § 2000e et seq. against CHS, Inc. (“CHS”). (Rec. Doc. No.
1). On March 10, 2013, the Court issued a Show Cause Order, which
noted that there had been “no record of service or appearance by
CHS, Inc.” (Rec. Doc. No. 7 at 1). The order required that
Plaintiff show cause on or before May 29, 2013 why the Defendant
“should not be dismissed for the Plaintiff’s failure to serve
within 120 days of filing the complaint.” Id. On May 29, 2013,
Plaintiff responded that her counsel “‘attempted Notice and Waiver’
on CHS by facsimile on May 10, 2013.” (Rec. Doc. No. 8 at 1; Rec.
Doc. No. 12 at 2).
Shortly thereafter, on June 20, 2013, the Court granted
Plaintiff a 45-day extension to properly serve CHS. (Rec. Doc. No.
9 at 6). This period expired on August 5, 2013.2 On August 22,
2013, Plaintiff’s counsel filed a motion to extend the time in
which to comply with the court order issued on June 20. (Rec. Doc.
No. 10 at 1). This motion was denied. (Rec. Doc. No. 11 at 2).
Subsequently, the Magistrate Judge recommended dismissal. (Rec.
Doc. No. 12 at 6). Plaintiff objected to the Magistrate Judge’s
Report and Recommendation timely and requests that the Court remand
this case for further findings. (Rec. Doc. No. 13).

2

Because the period expired on Sunday, August 4, 2013, the Court
allocated an additional day in order to make Plaintiff’s deadline
fall on a business day. The one-day difference is immaterial for
the purpose of the Magistrate’s Order.
2

LAW AND ANALYSIS
I. Review of Magistrate's Report and Recommendation
Upon timely objection to a magistrate judge's findings and
recommendation, the reviewing district court must make a de novo
determination of those portions of the report to which objection is
made. 28 U.S.C. § 636(b)(1)(C). The court may accept, reject, or
modify the findings or recommendations made by the magistrate
judge. Id. Here, because Plaintiff timely objects to the Magistrate
Judge's recommendation, the Court reviews the matter de novo.
II. Standard for Dismissal of a Claim
When a defendant is not served within 120 days after the
complaint is filed, the court must either (1) dismiss the action
without prejudice or (2) order that service be rendered within a
specified time. Fed. R. Civ. P. 4(m). If the delay constitutes
failure to comply with a court order or failure to prosecute, the
court may dismiss with prejudice under Rule 41(b). Fed. R. Civ. P.
41(b).
III. Service of Process
The Court must determine first whether the facsimile that was
transmitted

to

Defendant’s

counsel

complies

with

Plaintiff’s

service requirements. Under Rule 4(m), the plaintiff must serve the
defendant within 120 days after the complaint is filed unless the
court grants an extension of time. Fed. R. Civ. P. 4(m). The
“plaintiff is responsible for having the summons and complaint
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served within the time allowed by Rule 4(m).” Fed. R. Civ. P.
4(c)(1). Furthermore, when serving a corporation, the plaintiff may
serve the defendant either “[(1)] in the manner prescribed by Rule
4(e)(1) for serving an individual or [(2)] by delivering a copy of
the summons and of the complaint to an officer, a managing or
general agent, or any other agent authorized by appointment or by
law to receive service of process.” Fed. R. Civ. P. 4(h)(1).
Additionally, Rule 4(d) imposes a duty upon a defendantcorporation to “avoid unnecessary expenses of serving the summons.”
Fed. R. Civ. P. 4(d)(1). This allows the plaintiff to notify the
defendant that an “action has been commenced and request that the
defendant waive service of a summons.” Id. Per Rule 4(d), the
notice and request must meet certain requirements, including, but
not limited to, an accompanied “prepaid means for returning the
form.” Fed. R. Civ. P. 4(d)(1)(C).
Here, Plaintiff filed her complaint on December 24, 2012.
(Rec. Doc. No. 1). Pursuant to Rule 4(m), she was required to serve
CHS with a copy of the Summons and Complaint no later than April
27, 2013. Plaintiff failed to serve Defendant within this period
and was ordered by the Court on May 10, 2013 to show cause as to
why CHS should not be dismissed as a result of her failure. (Rec.
Doc. No. 7). In response to the Court’s Show Cause Order, Plaintiff
admitted that she had not served Defendant but indicated that her
counsel “attempted Notice and Waiver” by facsimile to Defendant’s
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counsel on May 20, 2013. (Rec. Doc. No. 8 at 1).
After Plaintiff filed this response, the Court granted her
until August 5, 2013 to properly serve CHS. (Rec. Doc. No. 9 at 6).
The Court noted within its Order granting the 45-day extension that
Plaintiff’s counsel did not indicate whether the facsimile was
transmitted to an “officer, a managing or general agent, or any
other agent authorized by appointment or by law to receive service
of process” in accordance with Rule 4(h). Id. at 4. The Court also
noted that because Plaintiff failed to include a copy of the
“Notice and Waiver” in her response, the Court could not assess the
reasonableness

of

her

attempt

to

comply

with

the

waiver

requirements set forth in Rule 4(d). Id.
Provided there was compliance, transmission of “Notice and
Waiver” in the form of a facsimile is not in compliance with Rule
4(d), which requires that a waiver include “a prepaid means of
returning the form.” Fed. R. Civ. P. 4(d)(1)(C). The facsimile
transmission here does not demonstrate that there is a prepaid
means of returning the waiver form. Other jurisdictions have noted
similarly that transmission of a facsimile as a Rule 4(d) request
is improper. See, e.g., D’Orange v. Feely, 101 F.3d 1393, 1996 WL
446254, at *2 (2d Cir. Aug 8, 1996) (unpublished) (Table, text in
Westlaw); Edwards-Conrad v. Southern Baptist Hospital of Florida,
Inc., 2013 WL 2109301, at *1-*2 (M.D. Fla. May 15, 2013)(same).

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IV. Good Cause Review
The Court may consider whether there is good cause sufficient
to warrant an additional extension of time to comply with the
service requirements. Rule 4(m) states that “if the plaintiff shows
good cause for the failure [to properly serve], the court must
extend the time for service for an appropriate period.” Fed. R.
Civ. P. 4(m). “‘Half-hearted’ efforts by counsel to effect service
of process prior to the deadline” do not necessarily constitute
“excusable neglect.” See Lovelace v. Acme Markets, Inc., 820 F.2d
81, 84 (3d Cir. 1987); Fed. R. Civ. P. 6(b)(1)(B). Furthermore,
“mere inadvertence” of counsel is no excuse for delay. Wei v. State
of Hawaii, Inc., 763 F.2d 370, 372 (9th Cir. 1985).
Here, Plaintiff’s counsel made the first and only attempt to
notify Defendant and request a waiver of service on May 20, 2013,
twenty-two days after the original period for service expired.
(Rec. Doc. No. 8 at 1). Following this, Plaintiff’s counsel
received instruction from the Magistrate Judge on how to perfect
service (Rec. Doc. No. 9 at 4-6); yet Plaintiff’s counsel failed to
rectify this deficiency despite the 45-day extension that was
granted. Thus, on August 26, 2013, the Magistrate Judge denied a
motion for an additional extension of time to comply with service
of process requirements, which was filed eighteen days (August 23)
after the second extension expired (August 5). (Rec. Doc. No. 11).
Mr. Wilson’s three-day absence (July 20-22) due to a family

6

emergency does not constitute excusable neglect that would warrant
an extension of time. (Rec. Doc. No. 10-1). At a minimum, Mr.
Wilson had 42 days within the 45-day extension period to properly
serve the Defendant. Furthermore, Mr. Wilson’s “near drowning
experience” (August 11) does not constitute excusable neglect
sufficient for an extension of time because it occurred six days
after the second extension’s expiration (August 5). (Rec. Doc. No.
10-1). Thus, the incident did not inhibit Mr. Wilson’s ability to
properly serve the Defendant within the time granted by the Court.
V. Attorney’s Duty
The Court may consider an attorney’s duty to (1) know the
service requirements as set forth in Rule 4 and (2) know the status
of his cases. Under Local Rule 83.2.7, “[e]veryone who appears in
court in proper person and every attorney permitted to practice in
this court must be familiar with these rules.” E.D. La. R. 83.2.7.
Furthermore, under Local Rule 83.2.8, “[a]ll counsel of record must
be familiar with the substance of all documents and court orders
filed in the case and any consolidated cases.” E.D. La. R. 83.2.8.
Courts approach situations of “confusion” concerning Rule 4(d)
waiver provisions with skepticism. See, e.g., D’Orange v. Feely,
101 F.3d 1393, 1996 WL 446254, at *2 (2d Cir. Aug 8, 1996) (noting
that a defect in a waiver request sent by facsimile can be cured by
“intervening personal service” notwithstanding any “confusion”
between the two transmissions); Edwards-Conrad v. Southern Baptist

7

Hospital of Florida, Inc., 2013 WL 2109301, at *1-*2 (M.D. Fla. May
15, 2013)(noting that district courts in the Eleventh Circuit have
held that plaintiffs must comply with Rule 4 and that noncompliance
will not be excused even for a pro se plaintiff). Here, Plaintiff’s
counsel should be familiar with the Rule 4(d) waiver provisions.
Id. Yet even after instruction on sending proper “Notice and
Waiver”(Rec. Doc. No. 9 at 4-6), he took no action to remedy the
defect.
Additionally, courts require attorneys to have knowledge of
the cases in which they have appeared. See, e.g. Fox v. American
Airlines, Inc., 389 F.3d 1291, 1294 (D.C. Cir. 2004)(holding that
failure to receive electronic notice of filing of motion to dismiss
did not excuse failure to respond); Edward H. Bohlin Co., Inc. V.
Banning Co., Inc., 6 F.3d 350, 357 (5th Cir. 1993) (finding that “a
party has a duty of diligence to inquire about the status of a
case” where plaintiffs allegedly misconstrued judge’s statements
and failed to respond to dismissal motion within 20 days pursuant
to local rules). Here, Plaintiff’s counsel maintains that he never
saw the court order that was issued on June 20. (Rec. Doc. No. 131). To substantiate this claim, Best Tech Computer Service reviewed
Mr. Wilson’s computer and subsequently declared that Plaintiff’s
counsel did not receive nor delete the order while noting that they
were unable to search his server because it does not store records
beyond 14 days. (Rec. Doc. No. 13-2). However, even assuming that

8

occurred,

Plaintiff’s

counsel

was

responsible

for

regularly

checking the docket of this case and should have been aware of the
order. See, e.g. Fox v. American Airlines, Inc., 389 F.3d at 1294;
Edward H. Bohlin Co., Inc. V. Banning Co., Inc., 6 F.3d at 357.
Over eight months passed between the time in which the
Plaintiff initiated this action and the Magistrate Judge issued her
Report and Recommendation; and Plaintiff still failed to serve the
Defendant with sufficient process or otherwise to show convincing
good cause for the failure to perfect sufficient service. Compare
Galvan

v.

Bonner,

No.

B-04-104,

2005

WL

1774102

(S.D.

TX

2005)(finding that Plaintiffs did not make a diligent effort to
serve Defendants as evidenced by their failure to serve the United
States Attorney or the Attorney General, failure to perfect defects
in service after receiving instruction on proper procedures, and
failure to respond to Defendant’s Motion to Dismiss within six
months), with Wright v. Potter, 350 Fed. App’x. 898 (5th Cir.
2009)(dismissing the Plaintiff’s appeal because she failed to
challenge the district court’s dismissal for failure to perfect
service, which was ordered after the Plaintiff failed to properly
serve the Defendant during a 15-day extension).
Accordingly, and for the reasons pronounced above, IT IS
ORDERED that the findings of the Magistrate Judge (Rec. Doc. No.
12) be AFFIRMED and that Petitioner’s application for relief under
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. be
9

DISMISSED WITHOUT PREJUDICE for failure to comply with Federal Rule
of Civil Procedure 4(m) and the Order issued by the Magistrate
Judge on June 20, 2013.
New Orleans, Louisiana, this 11th day of June, 2014.

_______________________________
UNITED STATES DISTRICT JUDGE

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