White v. City of Gulfport et al

Filing 5

Memorandum Opinion and Order: the claims of Plaintiff against Defendants City of Gulfport, Chris Ryle, Heather Dailey, Tommy Payne, and Clayton Fulks are Dismissed without prejudice. Signed by District Judge Halil S. Ozerden on 3/27/2024 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
AYANNA WHITE

§
§
§
§
§
§
§

v.
CITY OF GULFPORT, et al.

PLAINTIFF
Civil No. 1:23cv267-HSO-BWR
DEFENDANTS

MEMORANDUM OPINION AND ORDER DISMISSING
PLAINTIFF’S CLAIMS WITHOUT PREJUDICE PURSUANT
TO FEDERAL RULES OF CIVIL PROCEDURE 4(m) and 41(b)
This matter is before the Court sua sponte for case management purposes
after Plaintiff Ayanna White failed to serve Defendants and failed to comply with
United States Magistrate Judge Bradley W. Rath’s Orders [3], [4]. After due
consideration of the record and relevant legal authority, the Court finds that,
because Plaintiff has not timely served Defendants with process despite being given
multiple extensions of the deadline for doing so, and because Plaintiff has failed to
comply with two prior Court Orders [3], [4], her claims against Defendants should
be dismissed without prejudice pursuant to Federal Rules of Civil Procedure 4(m)
and 41(b).
I.

BACKGROUND

On October 12, 2023, Plaintiff Ayanna White (“Plaintiff” or “White”), filed the
Complaint [1] in this case advancing claims against Defendants City of Gulfport,
Chris Ryle, Heather Dailey, Tommy Payne, and Clayton Fulks under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 and the Americans with

Disabilities Act of 1990, 42 U.S.C. §§ 12112 to 12117. See Compl. [1] at 4. The
Complaint [1] alleges that Plaintiff was subjected to unlawful retaliation “as a
result of [her] filing a complaint of sex discrimination, sexual harassment, and a
sexually hostile environment in the workplace.” Id. at 6.
On January 9, 2024, 89 days after the Complaint [1] had been filed, Plaintiff
filed a Motion [2] for Extension of Time to Serve Process, stating that her health
condition “made it impracticable to ascertain legal counsel to effectuate service
within the time prescribed by the rules of civil procedure.” Mot. [2] at 1. Her Motion
[2] was granted and Plaintiff was given until February 11, 2024, to file proof of
proper service. See Text Only Order, January 12, 2024. On February 14, 2024, three
days after her extended deadline passed and 125 days after the Complaint [1] had
been filed, the Magistrate Judge entered an Order [3] pursuant to Federal Rule of
Civil Procedure 4(m) stating that Plaintiff had “until February 29, 2024 to
properly serve and file proof of proper service on all Defendants. Otherwise, the
claims against all unserved Defendants may be dismissed without prejudice and
without further notice to Plaintiff.” Order [2] at 1 (emphasis in original). That
deadline also passed, and Plaintiff did not respond to the Court’s Order [3] or take
any other action in the case.
On March 5, 2024, the Magistrate Judge entered an Order [4] to Show Cause,
requiring Plaintiff to show cause on or before “March 20, 2024 why this Court
should not dismiss this case without prejudice because of Plaintiff’s failure to
prosecute and obey the Court’s Order [3] to serve and file proof of service on all
2

Defendants by February 29, 2024.” Order [4] at 1-2. The Magistrate Judge warned
Plaintiff that if she failed to respond and show good cause by March 20, 2024,
“Plaintiff’s suit may be dismissed without prejudice and without further notice to
Plaintiff.” Id. at 1.
Despite these warnings, Plaintiff did not respond to the Magistrate Judge’s
Order [4] to Show Cause by the March 20 deadline. Plaintiff has taken no action in
this case since filing her Motion [2] for Extension of Time to Serve Process over two
months ago, and she has never filed any proof of service upon Defendants. See Mot.
[2].
II.
A.

DISCUSSION

Relevant legal authority
Under Rule 4(m),
[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.

Fed. R. Civ. P. 4(m). The United States Court of Appeals for the Fifth Circuit has
held that “[p]roof of good cause requires at least as much as would be required to
show excusable neglect, as to which simple inadvertence or mistake of counsel or
ignorance of the rules usually does not suffice.” Thrasher v. City of Amarillo, 709
F.3d 509, 511 (5th Cir. 2013) (quotation omitted). Moreover, “some showing of good
faith on the part of the party seeking an enlargement and some reasonable basis for

3

noncompliance within the time specified is normally required.” Id. (quotation
omitted).
A court may also dismiss an action sua sponte for failure to prosecute or
comply with a court order under Rule 41(b). See Griggs v. S.G.E. Mgmt., L.L.C., 905
F.3d 835, 844 (5th Cir. 2018). A court must be able to clear its calendar “of cases
that have remained dormant because of the inaction or dilatoriness of the parties
seeking relief.” Link v. Wabash R. Co., 370 U.S. 626, 630 (1962). Such a “sanction is
necessary in order to prevent undue delays in the disposition of pending cases and
to avoid congestion in the calendars of the District Courts.” Id. at 629-30.
When a dismissal without prejudice would effectively serve as a dismissal
with prejudice, a court may dismiss if there is “(a) a clear record of delay or
contumacious conduct by the plaintiff, and (b) where lesser sanctions would not
serve the best interests of justice.” Griggs, 905 F.3d at 844 (quotation omitted).

A

plain record of delay or contumacious conduct may generally be found if one of three
aggravating factors is also present: “(1) delay caused by the plaintiff; (2) actual
prejudice to the defendant; or (3) delay as a result of intentional conduct.” Id.
(quotation omitted).
B.

Analysis
Plaintiff did not properly serve Defendants within 90 days as required by

Rule 4(m) and she did not show good cause for this failure or seek additional time to
do so. See Fed. R. Civ. P. 4(m). Even though Plaintiff was nevertheless granted
multiple extensions of time to properly serve Defendants, she did not comply with
4

the extended deadlines imposed by the Magistrate Judge or seek additional time to
comply. See id.; Text Only Order, January 12, 2024; Order [3]. Plaintiff never
caused a summons to issue for, nor has she ever served, any Defendant as ordered.
Nor has she responded to the Magistrate Judge’s Order [4] to Show Cause.
Dismissal without prejudice under Rules 4(m) and 41(b) is therefore warranted. See
Fed. R. Civ. P. 4(m); Fed. R. Civ. P. 41(b).
To the extent that dismissal of any of Plaintiff’s claims would in effect be a
dismissal with prejudice, the Court finds that dismissal remains warranted. See
Griggs, 905 F.3d at 844. Plaintiff has taken no action in this case other than filing
her Complaint [1] over five months ago and filing a Motion [2] for Extension of Time
to Serve Process over two months ago. See id.; Compl. [1]; Mot. [2]. She has also
ignored two Court Orders [3], [4]. This establishes two of the requisite aggravating
factors: delay caused by Plaintiff and delay as a result of intentional conduct. See
Griggs, 905 F.3d at 844. As such the Court finds that there is a clear record of delay
and contumacious conduct, and lesser sanctions have not served and would not
serve the best interests of justice. See id. Under the present circumstances, without
sua sponte action by the Court, it appears this civil action will lie perpetually
dormant.

5

III.

CONCLUSION

IT IS, THEREFORE, ORDERED AND ADJUDGED that, the claims of
Plaintiff Ayanna White against Defendants City of Gulfport, Chris Ryle, Heather
Dailey, Tommy Payne, and Clayton Fulks are DISMISSED WITHOUT
PREJUDICE pursuant to Federal Rules of Civil Procedure 4(m) and 41(b).
SO ORDERED AND ADJUDGED, this the 27th day of March, 2024.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

6