Wilson v. Aleda E. Lutz VA Medical Center

Filing 16

OPINION AND ORDER Granting Defendant's 11 Motion to Dismiss, Dismissing Plaintiff's Complaint without Prejudice, and Cancelling Hearing. Signed by District Judge Thomas L. Ludington. (CGre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

LYNETT WILSON,
Plaintiff,
Case Number 10-12258-BC
Honorable Thomas L. Ludington

v.
ALEDA E. LUTZ VA MEDICAL CENTER,
Defendant.
______________________________________ /

OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS,
DISMISSING PLAINTIFF’S COMPLAINT WITHOUT PREJUDICE, AND
CANCELING HEARING
On June 8, 2010, Plaintiff Lynett Wilson filed a complaint against Defendant Aleda E. Lutz
VA Medical Center alleging that she was discriminated against because of her race in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the Elliott-Larsen Civil Rights Act,
Mich. Comp. Laws §§ 37.2101–.2804. Plaintiff works at the medical center and is an employee of
the United States Department of Veterans Affairs (“VA”).1
On January 3, 2011, the Court issued an order to show cause, noting that an answer had still
not been filed and directing Plaintiff to explain why her complaint should not be dismissed for want
of prosecution. See E.D. Mich. L.R. 41.2. Plaintiff’s counsel responded on January 6, 2011,
explaining that the complaint was not properly served within the 120-day time period. Plaintiff’s
counsel also noted that the attorney who filed the case was no longer with the firm, even though the
firm still represents the Plaintiff. Plaintiff’s counsel represented that the complaint was properly

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As a VA employee, she should have named the Secretary of Veterans Affairs, Eric K.
Shineski, as the defendant and not the medical center. See 42 U.S.C. § 2000e-16(c).

served on January 6, 2011, and asked the Court for a ninety-two day extension of the time period
for serving process under Federal Rule of Civil Procedure 4(m).
On March 11, 2011, Defendant, represented by the U.S. Attorney for the Eastern District of
Michigan, filed a motion to dismiss. See Fed. R. Civ. P. 12(b)(5). Defendant explained that the
complaint had still not been properly served, notwithstanding Plaintiff’s representation to the
contrary, and asked the Court to dismiss the complaint without prejudice. Defendant explains in its
motion that Plaintiff has still not perfected service on the United States Attorney for the Eastern
District of Michigan. Defendant also included a letter sent to Plaintiff’s counsel on January 4, 2011,
outlining the law governing service of process on a federal agency. [Dkt. # 11-3]. The letter
explains:
The Federal Rules of Civil Procedure require a party to serve the United
States and file a proof of service with the district court. “To serve the United States,
a party must (A)(i) deliver a copy of the summons and complaint to the United States
attorney for the district where the action is brought – [or his her designee] or (ii) send
a copy of [the summons and complaint] by registered or certified mail to the civilprocess clerk at the United States Attorney’s office.” Fed. R. Civ. P. 4(i)(1)(A)(i–ii).
In addition to serving the United States Attorney’s office, Fed. R. Civ. P. 4(i)(1)(B)
requires a party to serve the Attorney General of the United States by sending the
summons and complaint to his office in Washington D.C. via registered or certified
mail. You did not comply with either of these rules. Defendant has not and will not
waive service in this case.
Id.
Eleven months have passed since the complaint was filed, including a four-month period that
followed the government’s letter providing a detailed explanation of the service rules. As Defendant
emphasizes, Plaintiff has still not properly served Defendant, nor has she filed a motion seeking an
extension of the deadline for serving process. Moreover, Plaintiff has not demonstrated good cause
for an extension of the deadline for serving process. Indeed, the only explanation offered by

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Plaintiff’s counsel for neglecting the service requirements is that the attorney originally assigned to
the case has left the firm. Accordingly, the government’s motion to dismiss will be granted and
Plaintiff’s complaint will be dismissed without prejudice.
Pursuant to Rule 4(m),
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.
Pursuant to Rule 4(i), service on a United States’ agency, including the VA, requires delivery of a
copy of the summons and complaint to the United States Attorney for the Eastern District of
Michigan, Fed. R. Civ. P. 4(i)(1)(A), delivery of a copy of the summons and complaint to the
Attorney General in Washington, D.C., Fed. R. Civ. P. 4(i)(1)(B), and delivery of a copy of the
summons and complaint to the agency that is being sued, here the VA, Fed. R. Civ. P. 4(i)(2).
Plaintiff served the VA on July 6, 2010, but she did not serve the Attorney General or the
United States Attorney for the Eastern District of Michigan within the 120-day period. She served
the Attorney General on January 6, 2011, ninety-two days late. She has still not served the United
States Attorney for the Eastern District of Michigan. Because Plaintiff did not complete service
within the 120-day period, the Court “must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.” Fed. R. Civ. P. 4(m).
Plaintiff argues that the Court has the authority to extend the time for service even though
Plaintiff cannot demonstrate good cause for the delay. See Henderson v. United States, 517 U.S.
654, 662–63 (1996) (“[I]n the 1993 amendments to the Rules, courts have been accorded discretion
to enlarge the 120-day period ‘even if there is no good cause shown.’ ”) (citing Advisory

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Committee’s Notes on Fed. R. Civ. P. 4, 28 U.S.C. App., p. 654). She further argues that there is
some authority for permitting service. However, in nearly twenty years since the change cited by
Plaintiff, Sixth Circuit decisions have continued to focus on good cause as a justification for an
exception to the 120-day requirement. See, e.g., Nafziger v. McDermott Int’l, Inc., 467 F.3d 514,
521 (6th Cir. 2006) (affirming decision to deny extension of service deadline based on “reluctan[ce]
to disturb a district court’s ‘discretionary determination’ of whether good cause has been shown”)
(citation omitted); Bush v. City of Zeeland, 74 F. App’x 581, 583 (6th Cir. 2003) (affirming decision
to dismiss complaint without prejudice based on failure of service where “plaintiffs’ motion and
affidavit were insufficient to show good cause”); Fisher v. Merryman, 32 F. App’x 721, 723 (6th
Cir. 2002) (affirming dismissal of claim where plaintiff had not shown good cause for failure to
serve process).
Even if Henderson furnished unequivocal authority to substitute the reasonable exercise of
discretion for a good cause explanation of the delay, Plaintiff has not advanced any explanation for
the delay that would warrant the exercise of reasonable discretion. Indeed, to further extend the date
without any explanation turns the 120-day requirement on it head, and shifts the burden of
shepherding compliance with the service of process requirements to the defendant.
Accordingly, it is ORDERED that Defendant’s motion to dismiss [Dkt. # 11] is
GRANTED.
It is further ORDERED that Plaintiff’s complaint is DISMISSED WITHOUT
PREJUDICE.

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It is further ORDERED that the hearing scheduled for May 23, 2011 was canceled based
on the Court’s determination that the parties’ papers presented the necessary information to resolve
the motion. E.D. Mich. L.R. 7.1(f).

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: May 27, 2011
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on May 27, 2011.
s/Tracy A. Jacobs
TRACY A. JACOBS

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