West et al v. Hill et al

Filing 46

ORDER Denying Defendant Mario Hill's Amended Motion to Dismiss 37 . Signed by District Judge Halil S. Ozerden on May 5, 2017. (BGL)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
LI’TRENDIA WEST and
CHARMAINE HARTFIELD
v.

PLAINTIFFS
CIVIL NO. 1:16-cv-156-HSO-JCG

MARIO HILL and
CITY OF GULFPORT

DEFENDANTS

ORDER DENYING DEFENDANT MARIO HILL’S
AMENDED MOTION TO DISMISS [37]
BEFORE THE COURT is Defendant Mario Hill’s Amended Motion to
Dismiss [37] the claims asserted by Plaintiffs Li’Trendia West and Charmaine
Hartfield in their Amended Complaint [18] for failure to timely perfect service of
process. This Motion is fully briefed. For the reasons that follow, the Court finds
that Defendant’s Amended Motion is not well taken and should be denied.
I. RELEVANT BACKGROUND
This case arises out of an incident which allegedly occurred on June 8, 2014.
Plaintiffs Li’Trendia West (“West”) and Charmaine Hartfield (“Hartfield”) (jointly,
“Plaintiffs”) allege in their Amended Complaint [18] that they were subjected to
“violent and abusive conduct” by Defendant Mario Hill (“Defendant Hill”) due to
Defendant City of Gulfport’s (the “City”) failure to “adopt and implement policies
and procedures” to prevent such conduct. Am. Compl. [18] at 2-5.

Specifically, they claim that after they called the Gulfport Police Department
to report a disturbance at a business on Beach Boulevard in Gulfport, Mississippi,
Defendant Hill, a police officer with the Gulfport, Mississippi, Police Department,
responded and offered to drive them back to their hotel room. Id. at 2. Instead,
Defendant Hill parked on a dark street, ordered West out of the patrol car, and then
exposed himself, groped West, and sexually propositioned her. Id. Plaintiffs
further claim that Defendant Hill exposed himself to Hartfield suggesting that she
“touch it” while otherwise sexually propositioning her. Id. Plaintiffs advance 42
U.S.C. § 1983 claims against Defendant Hill for actions taken “under the color of
state law,” and against the City for its deliberate indifference in failing “to
investigate, train, supervise and discipline Defendant Hill” and in failing to adopt
adequate policies and procedures that would have prevented Defendant Hill’s
conduct. Id. at 2-5.
On February 20, 2017, Defendant Hill filed his Amended Motion to Dismiss
[37] arguing that Plaintiffs failed to timely effect service of process upon him. Am.
Mot. [37] at 1-2.1 Defendant Hill asserts that dismissal is required “pursuant to the

Defendant Hill also appears to contend that an additional basis for dismissal is
that the Amended Complaint is duplicative of a prior Complaint filed in this Court
in Civil No. 1:15cv399-LG-RHW, which was voluntarily dismissed without prejudice
by Plaintiffs on April 21, 2016, because they could not effectuate service of process
on Defendant Hill. Mem. in Opp’n [38] at 2-3. The voluntary dismissal of a prior

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provisions of Rule 4(m), 12(b)(2), 12(b)(5) and 41(b) of the Federal Rules of Civil
Procedure.” Am. Mot. [37] at 2. Plaintiffs respond that a court has broad authority
under Rule 4(m) to extend the time for service “regardless of a showing of good
cause,” citing Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996). Mem. in Opp’n
[43] at 1-3.
II. DISCUSSION
A.

Federal Rule of Civil Procedure 4(m) standard
Rule 4(m) provides in relevant part that
[i]f a defendant is not served within 90 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.
The United States Court of Appeals for the Fifth Circuit has held that under

Rule 4(m) a trial court “must” grant an extension of time to serve process if a
plaintiff establishes good cause for failure to serve, and may, in its discretion, grant
additional time absent a showing of good cause. Millan v. USAA General Indemnity
Co., 546 F.3d 321, 325 (5th Cir. 2008).

lawsuit is not relevant to the resolution of Defendant’s Amended Motion to Dismiss
[38].

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Absent proper service, a party may enter a general appearance and thereby
waive the affirmative defenses of insufficient service of process under Rule 12(b)(5)
and lack of personal jurisdiction under Rule 12(b)(2). FED R. CIV. P. 12(b)(5).
B.

Defendant Hill was properly served, albeit untimely, but his Amended
Motion to Dismiss [37] should be denied.
Defendant Hill appears to concede that he was properly served, albeit

untimely, with the Summons and Amended Complaint on January 24, 2017. Am.
Mot. [37] at 1. Defendant Hill’s responsive pleading was due 21 days later or by
February 14, 2017.
On February 13, 2017, United States Magistrate Judge John C. Gargiulo
conducted a telephonic Case Management Conference at which Defendant Hill
appeared pro se and participated along with counsel for the other parties.
Following the Conference, the Magistrate Judge entered a Case Management Order
(“CMO”) [32]. CMO [32] at 1-5. The CMO specifically provided that Defendant Hill
was granted additional time “until close of business February 17, 2017,” in which to
answer or otherwise respond to the Amended Complaint. CMO [32] at 4.
Regardless of whether Defendant Hill’s participation in the Case
Management Conference or his utilization of the Court’s grant of additional time to
respond to the Amended Complaint rose to the level of “affirmative action”
sufficient to establish a general entry of appearance, the Court finds that based

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upon the record Defendant Hill’s Amended Motion should be denied under this
Court’s discretionary authority to extend the time for service of process under Rule
4(m), even absent a showing of good cause.
III. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that Defendant
Mario Hill’s Amended Motion to Dismiss [37] is DENIED.
SO ORDERED AND ADJUDGED, this the 5th day of May, 2017.

s/ Halil Suleyman Ozerden

HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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