Chestang v. Alcorn State University et al

Filing 85

ORDER granting 65 Motion to Dismiss; denying 74 Motion for Leave to File Signed by Honorable David C. Bramlette, III on 12/12/2011 (PL)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
RUDY CHESTANG, III

PLAINTIFF

VS.

CIVIL ACTION NO: 5:10-cv-67-DCB-JMR

ALCORN STATE UNIVERSITY; ALCORN
STATE UNIVERSITY BOARD OF TRUSTEES;
AND DR. ALVIN SIMPSON, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY

DEFENDANTS

OPINION AND ORDER
This matter is before the Court on the Defendants’ 12(b)(5)
Motion to Dismiss for Insufficient Service of Process [docket entry
no. 64] and the Plaintiff’s Motion for Leave of Court for an
Extension of Time to Serve the Defendants [docket entry no. 74].
Having considered said Motions, the Parties’ opposition thereto,
applicable statutory and case law, and being otherwise fully
advised in the premises, the Court finds and orders as follows:
I. Facts and Procedural History
Plaintiff
Defendants

Rudy

Alcorn

Chestang
State

filed

his

University

Complaint

(“Alcorn

against

State”)

and

the
the

Mississippi Board of Trustees of State Institutions of Higher
Learning (“Board of Trustees”) on June 10, 2009 in the Northern
District of Illinois, and the case was transferred to this Court on
April

19,

2010.

Shortly

thereafter,

Magistrate

Judge

Roper,

recognizing that Alcorn State and the Board of Trustees had not

been properly served,1 ordered Chestang to file a Motion for Leave
to Allow Out of Time Service because 120 days had passed since he
had filed his Complaint. See June 15, 2010 Text Order Entry.
Chestang, however, failed to comply in a timely manner. Therefore,
on May 27, 2011, almost a year later, Alcorn State and the Board of
Trustees filed their present 12(b)(5) Motion requesting that the
Complaint against them be dismissed for insufficient service of
process. Only after the Defendants filed this Motion did Chestang
comply with Judge Roper’s Order. See docket entry no. 74.
The competing Motions by the Parties address the same issue:
whether the Court should dismiss the claims against the Defendants
or whether it should permit Chestang additional time for service.
The Defendants cite two compelling reasons why the Court should
rule in their favor. At the time of filing their Motion to Dismiss
(1) Chestang had yet to serve the Defendants within two years (731
days) of filing his Complaint, and (2) he had not followed the
Court’s Order. In response, Chestang claims that his prior counsel,
an Illinois-based attorney, attempted to serve both Defendants but
was unaware of Mississippi Rule of Civil Procedure 4(d)(5)’s
requirement

that

a

complaint

and

summons

must

be

served

on

Mississippi’s Attorney General to effectuate service on a state
institution. Further, Chestang asks the Court to grant his Motion

1

Chestang erroneously served the President of Alcorn State
instead of the Attorney General of the State of Mississippi, as
required by Mississippi Rule of Civil Procedure 4(d)(5).
2

so that justice may be served and irreparable harm avoided.
II. Failure to Properly Serve Complaint
The Defendants argue that Chestang’s actions against them
should be dismissed pursuant to Federal Rule of Civil Procedure
4(m). Rule 4(m) provides:
If a defendant is not served within 120 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). Rule 4(m) permits a district court to dismiss
a case without prejudice if a plaintiff fails to comply with its
mandates. Millan v. USAA Gen. Indemn. Co., 546 F.3d 321, 325 (5th
Cir. 2008)(citing Thompson v. Brown, 91 F.3d 20, 21 (5th Cir.
1996)). If, however, a plaintiff can establish good cause for
failing to serve a defendant, the court must extend the time for
service. Id. 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.” Lambert v. United States, 44 F.3d 296, 299 (5th Cir.
1995).
1.

Whether Good Cause Exists

In the present case, there is no question that Chestang lacks
good cause for failing to serve the Defendants. Chestang’s only
argument in this respect appears to be that his former Illinois
3

counsel was ignorant of Mississippi Rule of Civil Procedure 4--an
explanation that is insufficient to establish good cause. See id.
Further, this excuse is particularly unavailing since within a week
of present counsel’s appearance in this case, Magistrate Judge
Roper put him on notice of this procedural defect. See docket entry
no. 51 and July 8, 2010 Text Order. The better argument, and the
one that Chestang primarily advances, is that the Court should
exercise its discretionary authority to permit him to serve the
Defendants because otherwise it is likely that his claims would be
barred.
2.

Whether the
Authority

Court

Should

Exercise

Its

Discretionary

Chestang is correct that even if he lacks good cause under
Federal Rule of Civil Procedure 4(m) the Court has discretionary
power to extend the time for service. Millan, 546 F.3d at 325. In
particular, a discretionary extension may be warranted, “[when] the
applicable statute of limitations would bar the refiled action . .
.

.”

Id.

(quoting

Federal

Rule

of

Procedure

4(m)’s

advisory

committee note (1993)). As stated in the Court’s May 17, 2011
Order, the Complaint does not indicate when the events that form
the

basis

of

this

lawsuit

allegedly

occurred,

but

the

Court

surmises that they took place primarily in the spring of 2008. As
it is now the fall of 2011, the Court finds it highly probable that
the statutes of limitations on all of Chestang’s claims have run.
See Jones v. B.L. Develop. Corp., 940 So. 2d 961, 964-65, 67 (Miss.
4

Ct. App. 2006)(holding a one-year statute of limitations governs
claims for assault and battery and intentional infliction of
emotional distress arising out of sexual harassment); Cuvillier v.
Taylor, 503 F.3d 397, 401 (Miss. 2007) (holding 1983 suits borrow
from the forum state’s general personal injury limitations period
which, in Mississippi, is three years); Menard v. Bd. of Trustees
of Loyola Univ., 2004 WL 856641, *6 (E.D. La. 2004)(looking to
Louisiana

law

for

statute

of

limitations

on

Title

IX

claim;

presumably Title IX claims in Mississippi would borrow the threeyear Mississippi general personal injury limitations period).
Where

the

applicable

statute

of

limitations

likely

bars

further litigation, the Fifth Circuit reviews dismissals for want
of service of process under the heightened standard used to review
a dismissal with prejudice. Millan, 546 F.3d at 326. Dismissals
with prejudice are 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.’” Id.
(quoting Gray v. Fid. Acceptance Corp., 634 F.2d 226, 227 (5th Cir.
1981)).

Additionally,

where

the

Fifth

Circuit

has

affirmed

dismissals with prejudice, it has generally found 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.

McGlathery, 792 F.2d 472, 474 (5th Cir. 1986)).

5

(citing

Price

v.

This is the second time that Chestang has asked this Court for
more time to serve a defendant in this case. On May 17, 2011, the
Court issued an Order denying Defendant Simpson’s Motion to Dismiss
for Insufficient Service of Process, despite the fact that Chestang
failed to comply with Rule 4(m)’s requirements and was unable to
show good cause for his failure. The Court’s justification for
doing so was that there was “neither a clear record of delay or
contumacious conduct nor any of the relevant aggravating factors to
justify dismissal.” See docket entry no. 62, pgs. 8-9. In reaching
that conclusion, the Court found the following facts relevant: (1)
the delay in service was minimal; (2) Chestang had exhibited no
“stubborn resistance to authority”; (3) Simpson was not prejudiced
because he received the Complaint shortly after the law suit was
filed.
In this situation, however, the Court reaches the opposite
conclusion. Here, multiple aggravating factors are present. First,
the delay in service is significant and weighs heavily in favor of
dismissal. 731 days passed from the time Chestang filed his suit
with no service of process. Other courts have dismissed with
prejudice cases for lesser periods of inactivity. See Sealed
Appellant

v.

Sealed

Appellee,

452

F.3d

415,

419

(5th

Cir.

2006)(almost 600 days); Veazey v. Young’s Yacht Sale & Serv., Inc.,
644 F.2d 475, 477 (5th Cir. 1981)(almost two years). Chestang’s
lengthy delay in serving process on Alcorn State or the Board of

6

Trustees coupled with his previous delinquent service of process on
Defendant Simpson establishes a “clear record of delay” and alone
constitutes sufficient grounds for the Court to impose the harsh
sanction of dismissal with prejudice. See Veazey, 644 F.2d at 477
(holding that a twenty-one (21) month period between filing the
complaint and serving the defendant evidence “a clear record of
delay”). Secondly, Chestang’s attorney was ordered to file a
request

for

an

extension

of

time

within

which

to

serve

the

Defendants but waited almost a year to do so. Judge Roper’s Order
put Chestang’s counsel on notice of this procedural oversight and,
as an officer of the court, he had an obligation--to the Court and
to his client--to comply with its Order.
Although the Defendants have not demonstrated to this Court
the particular ways in which they might be prejudiced if the Court
were to grant Chestang additional time to serve them, in this case
prejudice can be inferred from the length of delay. The Fifth
Circuit has stated that “[d]elay in serving a complaint is a
particularly serious failure to prosecute because it affects all
the defendant’s preparations.” Veazey, 644 F.2d at 478 (citing
Pearson v. Dennison, 353 F.2d 24, 28 (9th Cir. 1968); Howmet Corp.
v. Tokyo Shipping Co., 318 F. Supp. 658 (D.C. Del. 1970). Again,
more than three years have passed since the time of the alleged
incident, and the Court deduces from Chestang’s two-year-delay that
the Defendants would not have the same access to witnesses and

7

documents as they would if Chestang had served them within the
period of time required by Rule 4(m).
III. Disposition
The final question for the Court is whether sanctions other
than dismissal are appropriate in this circumstance. The Court
recognizes, and case law makes abundantly clear, that dismissal of
a plaintiff’s claims with prejudice is an extreme sanction and
should

be

exercised

cautiously.

See,

e.g.,

Berry

v.

CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). In order to
avoid the harshness of this potential disposition, the Court is
instructed to impose lesser sanctions on the plaintiff where such
sanctions may “better serve the interests of justice.” Brown v.
Thompson, 430 F.2d 1214, 1216 (5th Cir. 1970). This is especially
true when the delay appears to be attributable entirely to the
plaintiff’s counsel. See Veazey, 644 F.2d at 478.
After reviewing each of the aggravating factors discussed
above and noting in particular that courts have dismissed with
prejudice cases with shorter periods of inactivity than the case at
bar, the Court finds dismissal with prejudice is appropriate
because of Chestang’s clear record of delay in this case.2 See id.

2

With respect to whether this pattern of delay was the direct
responsibility of plaintiff’s counsel, the Court notes that
Chestang bears some responsibility for twice hiring attorneys who
have failed to comply with Rule 4. See Link v. Wabash R. Co., 370
U.S. 626, 633 (1962). (“Petitioner voluntarily chose this attorney
as his representative in the action, and he cannot now avoid the
consequences of the acts or omissions of this freely selected
8

Pursuant to Rule 4(m)’s instruction, however, the Court will
dismiss Chestang’s Complaint without prejudice so that he may
refile

it.

The

Court

makes

no

finding

about

the

statute

of

limitations defense.
Accordingly,
IT IS HEREBY ORDERED that the Defendants’ Motion to Dismiss
for Insufficient Service of Process [docket entry no. 65] is
GRANTED.
IT IS FURTHER ORDERED that the Plaintiff’s Request for an
Extension of Time to Serve the Defendants [docket entry no.
74] is DENIED.
IT IS FURTHER ORDERED the Plaintiff’s Complaint against Alcorn
State

and

the

Board

of

Trustees

is

DISMISSED

without

prejudice.
SO ORDERED AND ADJUDGED, this the 12th day of December 2011.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

agent.”).
9