Lee v. Fairview Health Services et al

Filing 62

ORDER denying 39 Motion to Dismiss/General (Written Opinion) Signed by Senior Judge David S. Doty on 1/4/2018. (DLO) cc: Claire Jean Lee. Modified on 1/4/2018 (lmb).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 17-105(DSD/SER)
Claire Jean Lee,
Plaintiff,
v.

ORDER

Fairview Health Services and
Fairview Southdale Hospital,
Defendants.
Claire Jean Lee, 10101 Lyndale Avenue South, Apartment 219,
Bloomington, MN 55420, plaintiff pro se.
Jennifer M. Waterworth, Esq. Gislason & Hunter, LLP, 701 Xenia
Avenue South, Suite 500, Minneapolis, MN 55416, counsel for
defendants.
This matter is before the court upon the motion to dismiss by
defendants
Hospital.

Fairview

Health

Services

and

Fairview

Southdale

Based on a review of the file, record, and proceedings

herein, and for the following reasons, the court denies the motion.

BACKGROUND
On January 10, 2017, pro se plaintiff Claire Jean Lee filed
suit against defendants for alleged violations of the Americans
with Disabilities Act, the Emergency Medical Treatment and Active
Labor

Act,

and

the

Rehabilitation

Act,

and

for

intentional

infliction of emotional distress. On January 31, the court granted
Lee’s application to proceed in forma pauperis and ordered the
United States Marshal to serve a copy of the complaint and summons

on the defendants as directed by Lee. Lee failed to properly serve
defendants within 90 days because she believed that she had 120
days to complete service.

She moved the court for a 30-day

extension to amend her complaint and complete service. See ECF No.
9.

On May 11, the court granted a 30-day extension and ordered Lee

to file an amended complaint by June 1.

See ECF No. 11.

Lee was

not able to file her amended complaint until June 6 because of an
alleged series of events beyond her control.1
at 4; ECF No. 12.

See Pl.’s Opp’n Mem.

On June 5, the U.S. Marshal served Fairview

Southdale Hospital with the original complaint.2
20.

See ECF Nos. 13,

The U.S. Marshal attempted to serve Fairview Health Services

on July 14, but was unable to do so because of a wrong address.3
See ECF Nos. 22, 25.

Because defendants were served with the

original, rather than the amended complaint, the court ordered that
Lee

submit

completed

Marshal

Service

Forms

for

each

of

the

defendants and, once she did so, a summons would be issued and the
U.S. Marshal would serve defendants with the amended complaint.
See ECF No. 20.

It appears that Lee complied with the order,

because the clerk’s office issued a summons for each defendant on

1

Lee’s amended complaint adds a claim alleging the violation
of the Minnesota Government Data Practices Act.
2

Defendants now dispute that the June 5 service was proper.

3

As discussed below, it appears that Lee listed the correct
address on the Marshal Service Form, but the Marshal was unable to
find it.
2

August 1.

See ECF No. 32.

The U.S. Marshal successfully served

the summons and amended complaint on both defendants on September
6.4

See ECF No. 36.
Defendants now move to dismiss arguing that the court lacks

personal jurisdiction because of insufficient service of process.

DISCUSSION
I.

Standard of Review
Without

service

or

waiver

jurisdiction over a defendant.

of

process,

the

court

lacks

See Printed Media Servs., Inc. v.

Solna Web, Inc., 11 F.3d 838, 843 (8th Cir. 1993).

A plaintiff

must make a prima facie showing that the court has personal
jurisdiction over the defendants.

See Digi–Tel Holdings, Inc. v.

Proteq Telecomms. (PTE), Ltd., 89 F.3d 519, 522 (8th Cir. 1996).
When considering whether personal jurisdiction exists, the court
views the evidence in the light most favorable to the plaintiff and
may consider matters outside the pleadings.

Id.; see Dever v.

Hentzen Coatings, Inc., 380 F.3d 1070, 1073 (8th Cir. 2004).
Under the Federal Rules of Civil Procedure, a plaintiff must
serve all defendants with a copy of the summons and complaint
within ninety days of the filing of the complaint.
4(m).

Fed. R. Civ. P.

But the court must extend the time for service if the

4

It is unclear why the Marshal was not able to serve the
defendants until over a month after the summons was issued.
3

plaintiff

shows

defendants.

good

cause

for

failure

to

timely

serve

the

Id.; see also Kurka v. Iowa Cty., Iowa, 628 F.3d 953,

957 (8th Cir. 2010); Colsante v. Wells Fargo Corp., 81 Fed. App’x
611, 612-613 (8th Cir. 2003) (per curiam).

Even if the plaintiff

fails to show good cause, the court has discretion to grant an
extension if the plaintiff demonstrates excusable neglect.

Kurka,

628 F.3d at 957; Colsante, 81 Fed. App’x at 613.
“[G]ood cause is likely (but not always) to be found when [1]
the plaintiff’s failure to complete service in timely fashion is a
result of the conduct of a third person, typically the process
server, [2] the defendant has evaded service of process or engaged
in misleading conduct, [3] the plaintiff has acted diligently in
trying to effect service or there are understandable mitigating
circumstances, or [4] the plaintiff is proceeding pro se or in
forma pauperis.”

Kurka, 628 F.3d at 957 (alteration in original)

(citation and internal quotation marks omitted).
II.

Motion to Dismiss
A.

Service of Amended Complaint

Defendants

first

argue

that

service

was

untimely,

even

considering the court’s 30-day extension of time for service,
because they were not properly served until September 6, 2017. The
court would agree, except that defendants ignore the court’s July
13, 2017, order which required Lee to submit a completed Marshal
Service Form within twenty-one days and, if she complied, the U.S.
4

Marshal would subsequently serve defendants. In issuing the order,
the court implicitly extended time for service.5

It appears that

Lee complied with the July 13 order and timely completed Marshal
Service Forms, following which the clerk’s office issued the
summonses.

See ECF No. 32.

The record does not indicate why the

U.S. Marshal did not serve the defendants sooner, but the delay was
not caused by Lee. Accordingly, dismissal is not warranted on this
basis.
B.

Service of Original Complaint

Defendants also argue that they were not properly served with
the original complaint.

The record shows that on May 5, 2017, the

clerk’s office issued the summonses and that copies of the summons,
original complaint, and Marshal Service Forms were sent to the U.S.
Marshal’s office. See ECF No. 8. Although Lee submitted the forms
past the 90-day deadline for service, the court found good cause
for the delay and accepted the untimely submission.

See ECF No.

11. Again, for reasons not apparent to the court, the U.S. Marshal
did not attempt to serve Fairview Southdale Hospital and Fairview
Health Services until June 5 and July 14, 2017 respectively.
Accordingly, the delay in service is not attributable to Lee, and
dismissal of the complaint is also not warranted on this basis.

5

Because the order was issued after the filing of the amended
complaint, it also implicitly accepted the late filing of the
amended complaint.
Therefore, the court rejects defendant’s
argument that dismissal is warranted because the amended complaint
was not timely filed.
5

1.

Service on Fairview Southdale Hospital

Defendants contend that service of the original complaint on
Fairview Southdale Hospital was insufficient, despite the U.S.
Marshal stating that service was executed properly.
13.

See ECF No.

Defendants rely on the affidavit of Joyce Peper, who accepted

service, which states that the Marshal did not identify himself and
did not ask if she was authorized to accept service.
5-6.

Even

assuming

that

this

is

true,

the

Peper Aff. ¶¶
fault

is

not

attributable to Lee and, under these circumstances, does not
warrant dismissal of the complaint.
2.

Service on Fairview Health Services

Defendants also argue that dismissal of the complaint is
warranted because Fairview Health Services was never properly
served with the original complaint.

The record indicates that the

U.S. Marshal was unable to properly serve Fairview Health Services
because of a wrong address.
appear to be Lee’s fault.

See ECF No. 25.

Again, this does not

Lee listed the defendant’s address as

2450 Riverside Avenue, Minneapolis, MN, 55454.

This appears to be

the correct address as it matches the address on Fairview Health
Services’s website, and defendants do not contend otherwise.

See

https://www.fairview.org/contact-us

28,

2017).

Accordingly,

Lee

cannot

(last
be

held

visited
to

December

account

for

the

Marshal’s failure to find the correct address, and the motion to
dismiss must be denied.

6

C.

Deficient Summons

Finally, defendants argue that service was deficient because
the summonses did not have Lee’s address as required by Fed. R.
Civ. P. 4(a)(1)(C).

But the clerk’s office is responsible for

completing and issuing the summons, not Lee. Therefore, Lee cannot
be held responsible for these deficiencies, and dismissal is not
warranted on this basis.
Because Lee is pro se, most of the delays in service were due
to the fault of a third-party, and defendants are unable to show
any significant prejudice resulting from the delay in service, the
court finds that good cause exists for any delay.6

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that
defendants’ motion to dismiss [ECF No. 39] is denied.

Dated: January 4, 2018
s/David S. Doty
David S. Doty, Judge
United States District Court

6

Because the court finds that there is good cause for the
delay in service, it need not decide whether Lee has shown
excusable neglect.
7