Wade et al v. Officer Demetrius Breland et al

Filing 11

ORDER Declining to Adopt the 4 REPORT AND RECOMMENDATIONS and granting Plaintiff twenty (20) days to perfect service on Defendant Holden and to file proof of service on the record - on or before November 18, 2016. Signed by District Judge Keith Starrett on October 28, 2016 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
GEORGE L. WADE, JR., et al.
V.

PLAINTIFFS
CIVIL ACTION NO. 2:16-CV-47-KS-MTP

CITY OF HATTIESBURG, MISS., et al.

DEFENDANT

ORDER
Plaintiffs filed their Complaint [1] on April 13, 2016, naming the City of
Hattiesburg, Officer Demetrius Breland, and Officer Narottam Holden as Defendants.
Rule 4(m) requires a plaintiff to serve the defendant with summons and a copy of the
complaint within ninety days of filing. FED. R. CIV. P. 4(m). Therefore, Plaintiffs were
required to perfect service on or before July 12, 2016. Id. They failed to do so.
On July 18, 2016, the Magistrate Judge entered an Order [2] reminding
Plaintiffs of Rule 4(m)’s requirements, and sua sponte granting Plaintiffs another
twenty days to perfect service – on or before August 8, 2016. The Court warned
Plaintiffs that if they did not perfect service and file proof thereof, or if the Court did
not extend the time for service upon a showing of good cause, the case may be
dismissed without prejudice. On August 3, 2016, the Clerk’s office issued summons [3],
but Plaintiffs did not file proof that service had been perfected by August 8, 2016.
Accordingly, on August 9, 2016, the Magistrate Judge entered his Report and
Recommendation [4] that the case be dismissed without prejudice for Plaintiffs’ failure
to prosecute and to comply with the Court’s previous Order [2]. Plaintiffs were given
two weeks – until August 23, 2016 – to file a written objection to the Report and

Recommendation [4]. On August 23, 2016, Plaintiffs filed proof of service on the City
of Hattiesburg [5] on August 3, 2016, and Defendant Breland [6] on August 5, 2016.
Plaintiffs also requested [7] and received [8] additional time to file their objection to
the Magistrate Judge’s Report and Recommendation [4]. On August 29, 2016, Plaintiffs
filed their written objection [10] to the Magistrate Judge’s Report and
Recommendation.
Plaintiffs argue that dismissal without prejudice would effectively bar any
future litigation because the events which led to this litigation occurred on April 16,
2013, and the case was filed April 13, 2016 – three days before the statute of
limitations expired. Accordingly, Plaintiffs argue that the Court must apply a
heightened standard in determining whether to dismiss their claims, and that their
counsel’s negligence and failure to timely serve process is not sufficient to meet that
standard. For the purpose of addressing the Report and Recommendation [4], the Court
will assume that Plaintiffs’ statute of limitations analysis is accurate.
“If the applicable statute of limitations likely bars future litigation, a district
court’s dismissal of claims under Rule 4(m) . . . 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.” Thrasher v. City of Amarillo, 709 F.3d 509, 512-13
(5th Cir. 2013). Dismissal requires “delay longer than just a few months; instead the
delay must be characterized by significant periods of total inactivity.” Id. at 513. This
is not the only consideration. Dismissals in these situations are generally appropriate
where there is “at least one of three aggravating factors: (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. at 514.
Plaintiffs’ counsel’s admitted negligence is vexing insofar as it has caused the
Court to expend time and resources on this issue that it would not have if he had
simply served Defendants with process within the time allotted by the Rules of Civil
Procedure. Plaintiffs have not provided any reason why they did not attempt service
during the initial 90-day period or why they waited until five days before the expiration
of the additional twenty-day period granted by the Magistrate Judge. In fact, it has
now been over six months since Plaintiffs filed this case, and over two months since
they filed their written objection to the Report and Recommendation, but they still
have not filed a proof of service on Defendant Holden.
Nevertheless, the Court does not believe that the record displays a “clear record
of delay or contumacious conduct.” Id. at 512. The Court warns Plaintiffs, though, that
another period of inactivity or failure to comply with the Court’s orders could tip the
analysis in the other direction, and that this warning should be considered a lesser
sanction as contemplated by the case law cited above. The Court declines to adopt
the Magistrate Judge’s Report and Recommendation [4]. Plaintiff is granted twenty
days to perfect service on Defendant Holden and to file proof of service on the record
– on or before November 18, 2016.
SO ORDERED AND ADJUDGED, on this, the 28th day of October, 2016.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE