Chovanec v. Monroe et al

Filing 25

MEMORANDUM RULING re 1 Complaint filed by John Chovanec. Signed by Chief Judge Robert G James on 6/22/12. (crt,DickersonSld, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION

JOHN CHOVANEC

CIVIL ACTION NO. 11-1798

VERSUS

JUDGE ROBERT G. JAMES

POLICE DEPT. CITY OF
MONROE, ET AL.

MAG. JUDGE KAREN L. HAYES

MEMORANDUM RULING

On June 12, 2012, this Court denied pro se Plaintiff John Chovanec’s (“Chovanec”) third
Motion for Extension of Time to Effect Service [Doc. No. 22] based on his failure to meet the
deadline set forth in the magistrate judge’s April 16, 2012 Order [Doc. No. 16] directing Chovanec
to properly perfect and file a return of service for the named Defendants in this matter no later than
June 12, 2012. For the following reasons, Chovanec’s Complaint [Doc. No. 1] is DISMISSED
WITH PREJUDICE.
More than 120 days have passed since Chovanec filed his Complaint [Doc. No. 1] on October
5, 2011. Rule 4(m) of the Federal Rules of Civil Procedure provides that “[i]f 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 the defendant or order that service
be made within a specified time.” (emphasis added). See Local Rule 41.3 (“A civil action may be
dismissed by the clerk of court or any judge of this court for lack of prosecution . . . [w]here no
service of process has been made within 120 days after filing of the complaint.”). Additionally,
Federal Rule of Civil Procedure 41(b) permits a district court to dismiss an action for a plaintiff’s

failure to prosecute. See Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1190 (5th Cir. 1992).
The Court has given Chovanec ample time to serve Defendants in this case and notice that
his case would be dismissed if he failed to effect service. In her April 16, 2012 Order, the magistrate
judge granted Chovanec’s second motion for extension of time to perfect service and imposed a final
deadline of June 12, 2012.

She specifically warned Chovanec that “NO FURTHER

EXTENSIONS WILL BE GRANTED.” [Doc. No. 16]. Rather than comply with the deadline,
Chovanec sought a third extension of time to effect service on Defendants on June 11, 2012, which
was denied. [Doc. Nos. 20 & 22]. Thus, Rule 4(m) obligates this Court to dismiss Chovanec’s
lawsuit for failing to effect service by the final deadline set by the magistrate judge. “In federal
court, a dismissal under Rule 4(m) constitutes an abandonment of a claim, meaning that the claim
is treated as having never been filed and thus fails to interrupt the running of a prescription period.”
Cruz v. Louisiana, 528 F.3d 375, 379 (5th Cir. 2008) (citing Hilbun v. Goldberg, 823 F.2d 881, 883
(5th Cir. 1987) (“A federal court that dismisses without prejudice a suit arising from a federal
statutory cause of action has not adjudicated the suit on its merits, and leaves the parties in the same
legal position as if no suit had ever been filed”)).
Chovanec’s Complaint alleges violations under 42 U.S.C. § 1983. “Because there is no
federal statute of limitations for § 1983 claims, the district court looks for comparison to the forum
state’s statute of limitations for personal injury claims.” Thompson v. St. Tammany Parish Hosp.,
12-0360-J, 2012 U.S. Dist. LEXIS 78960, at *11 (E.D. La. May 22, 2012) (citing Wallace v. Kato,
549 U.S. 384, 387 (2007)). LA CIV . CODE art. 3492 governs personal injury claims and provides for
a one-year prescriptive period from the date of injury or damage. Chovanec also alleges claims of
defamation against various regional media outlets that reported his arrest. Defamation claims are
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also subject to Article 3492’s one-year prescriptive period. See Williams v. Nexstar Broad., Inc., No.
11-CA-887, p. 11-12 (La. App. 5 Cir. 4/10/12); 2012 La. App. LEXIS 482.
The Fifth Circuit applies Louisiana law regarding the interruption of prescription. Lewis v.
Sheriff’s Dep’t Bossier Parish, 2012 U.S. App. LEXIS 5266, *14-15 (5th Cir. 2012) (unpublished)
(citing Cruz, 528 F.3d at 378). Although Louisiana law provides that the pendency of a suit in a
court of competent jurisdiction and venue interrupts prescription, “[i]nterruption is considered never
to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before
the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at trial.”
LA CIV . CODE art. 3463; see Lewis, 2012 U.S. App. LEXIS 5266 at *15. Since dismissal under Rule
4(m) constitutes abandonment, any case dismissed on this basis will be treated as if it were never
filed.
According to his Complaint, which was filed on October 5, 2011, Chovanec’s unlawful arrest
occurred on October 6, 2010. [Doc. No. 1, p. 1]. Given that nearly one year passed between
Chovanec’s alleged unlawful arrest and the filing of his Complaint, the prescriptive period had nearly
run when Chovanec filed his lawsuit. See Wallace, 549 U.S. at 388 (“There can be no dispute that
petitioner could have filed suit as soon as the allegedly wrongful arrest occurred, subjecting him to
the harm of involuntary detention, so the statute of limitations would normally commence to run
from that date”). While it is unclear when the media outlets reported his arrest, the Court can only
assume the reports would have been made shortly after the arrest. Thus, the one-year prescriptive
period applicable to all of Chovanec’s claims would have run by some day in October, 2011. By
filing suit on October 5, 2011, Chovanec initially tolled the prescriptive period.
However, if this Court dismisses Chovanec’s Complaint for failure to effect service on
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Defendants, he will be deemed under Fifth Circuit precedent as having abandoned his lawsuit. As
a result, the filing of Chovanec’s Complaint did not result in an interruption of Louisiana’s one-year
prescriptive period. While the Court would normally dismiss Chovanec’s lawsuit without prejudice,
a dismissal with prejudice is appropriate in this case.
Recognizing that dismissal with prejudice “is an extreme sanction that deprives the litigant
of the opportunity to pursue his claim,” the Fifth Circuit has identified aggravating factors that
district courts must consider when imposing such an outcome. Berry, 975 F.2d at 1191 (internal
quotations omitted). “[D]ismissal with prejudice is warranted only where ‘a clear record of delay
or contumacious conduct by the plaintiff’ exists and a lesser sanction would not better serve the
interests of justice.” Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326 (5th Cir. 2008) (citations
omitted). Additionally, the Fifth Circuit generally requires at least one of three aggravating factors
for a dismissal with prejudice: “(1) delay caused by [the] plaintiff himself and not his attorney; (2)
actual prejudice to the defendant; or (3) delay caused by intentional conduct.” Id. (citations and
internal quotation marks omitted). Here, the Court notes that Chovanec has established a clear
record of delay in failing to effect service in accordance with court-imposed deadlines. Although
the magistrate judge identified a number of legal assistance organizations, Chovanec apparently
failed to contact them. See [Doc. Nos. 6, 12, 16]. Additionally, Chovanec’s indigent status means
that lesser sanctions would have little effect. Finally, because Chovanec is proceeding pro se, all
delays here are attributable to him, rather than to an attorney. Accordingly, dismissal with prejudice
is not an inequitable outcome given the history of this case.

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MONROE, LOUISIANA, this 22nd day of June, 2012.

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