Owens v. Mason et al

Filing 38

ORDER denying 33 Motion to Dismiss for the reasons set out in the Order. Signed by Chief District Judge Daniel P. Jordan III on July 2, 2019. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
DANNY M. OWENS
V.

PLAINTIFF
CIVIL ACTION NO. 3-18-CV-200-DPJ-FKB

VICTOR P. MASON, ET AL.

DEFENDANTS
ORDER

Defendant Ben Wilson moves to dismiss [33] this civil-rights action for failure to timely
serve process. Plaintiff Danny M. Owens argues in response that he has shown good cause for
an extension of time to serve. The Court agrees and finds that Wilson’s motion should be
denied.
I.

Facts and Procedural History
This suit relates to the seizure of real property in satisfaction of a default judgment

entered by the County Court of Hinds County, Mississippi. In January 2016, Marteze Harris
obtained a default judgment against Daniel Owens d/b/a Black Diamonds Nightclub for failure to
participate in and/or respond to discovery requests. Harris’s counsel, Defendant Ben Wilson,
represented that the judgment debtor owned real property in Hinds County—the Black Diamonds
Nightclub—which could satisfy the judgment. The Hinds County Circuit Clerk issued a Writ of
Execution, and the Hinds County Sheriff’s Department seized the property. Defs.’ Ex. C [14-3]
at 15 (Writ of Execution).
Plaintiff Danny M. Owens claims that he––not his son the judgment debtor––owned the
real property. So he filed suit on March 23, 2018, against Hinds County Sheriff Victor P.
Mason, Hinds County Deputy Clerk Karla Bailey, and Wilson alleging they violated his right to
due process by issuing and executing the writ. Compl. [1] at 1. On December 14, 2018, the

Court dismissed Mason and Bailey on res judicata grounds and observed that Wilson had not
been served. Order [26] at 11. Owens was given 14 days to show cause why the claims against
Wilson should not be dismissed under Rule 4(m). Id.
Owens responded, explaining that he had attempted to serve Wilson at his office on
several occasions and was told Wilson was absent. Resp. [27] at 2. And he claimed “every
attempt to leave process with the guard dog receptionist was refused.” Id.; see Owens Aff. [28]
at 1–2 (stating he hired two process servers who tried multiple times to serve Wilson). When
Magistrate Judge Ball stayed the case pending a ruling on Bailey and Mason’s motion, Owens
believed he could take no further action. Resp. [27] at 2; see June 7, 2018 Text-Only Order
(staying discovery). Owens included in his show-cause response a request for an extension of
time and ultimately served Wilson at his home on January 15, 2019. Id. at 3 (requesting an
extension until January 31, 2019); Proof of Service [30].1
II.

Analysis
Wilson now seeks dismissal pursuant to Federal Rules of Civil Procedure 4(m) and

12(b)(5) for failure to timely serve process. Rule 4(m) provides,
If 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.
To establish good cause, Owens “must show more than inadvertence, mistake or ignorance of the
rules.” Sys. Signs Supplies v. U.S. Dep’t of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990). “Proof
of good cause requires ‘at least as much as would be required to show excusable neglect . . . .’”
Thrasher v. City of Amarillo, 709 F.3d 509, 511 (5th Cir. 2013) (quoting Winters v. Teledyne

1

Owens, who is proceeding pro se, did not file a separate motion as required by the Local Rules.
2

Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985)). “Additionally, some ‘showing of
good faith on the part of the party seeking an enlargement and some reasonable basis for
noncompliance within the time specified is normally required.’” Id. (quoting Winters, 776 F.3d
at 1306).
That said, “even if good cause is lacking, the court has discretionary power to extend
time for service.” Newby v. Enron Corp., 284 F. App’x 146, 149 (5th Cir. 2008) (citing
Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996)). “Such relief may be warranted, ‘for
example, if the applicable statute of limitations would bar the refiled action, or if the defendant is
evading service or conceals a defect in attempted service.’” Id. (quoting Fed. R. Civ. P. 4(m)
advisory committee’s note (1993)).
It is undisputed that Owens failed to timely serve Wilson, but Owens has shown good
cause. Soon after filing the complaint, Owens hired two different process servers who attempted
to serve Wilson at his office multiple times without success. Owens mistakenly believed that
Judge Ball’s June 7, 2018 stay prevented him from attempting to serve Wilson again. But when
the Court ordered Owens to show cause for his failure to serve, he promptly responded,
explained the reason for the delay, requested an extension of time, and served Wilson at his
home soon thereafter. Owens has shown good cause for his failure to timely serve Wilson, or
alternatively, he has at least suggested that Wilson was evading service. 2
Owens’s embedded motion for an extension of time to serve process [18] is granted; the
service of Wilson on January 15, 2019, is considered timely. Wilson’s motion to dismiss [33] is
denied.

Wilson argues the show-cause response, which was postmarked December 27, 2018, and filed
January 2, 2019, was untimely. With the Court closings for Christmas and New Year’s, the
filing is considered timely.
2

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III.

Conclusion
The Court has considered all arguments; those not addressed would not have changed the

result. For the reasons stated, Wilson’s motion to dismiss [33] based on untimely service is
denied.
SO ORDERED AND ADJUDGED this the 2nd day of July, 2019.
s/ Daniel P. Jordan III
CHIEF UNITED STATES DISTRICT JUDGE

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