Kitchens v. The United States of America et al

Filing 45

MEMORANDUM AND ORDER Defendant's objection, Filing No. 44 , is denied. Plaintiff is ordered to file an affidavit in support of her motion for alternate service at which time the Court will rule on Defendant's motion to set aside, Filing No. 43 . Ordered by Senior Judge Joseph F. Bataillon. (LRM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
REBECCA KITCHENS,
Plaintiff,

8:24CV37

vs.
MEMORANDUM AND ORDER
THE UNITED STATES OF AMERICA, and
MARY OYELEYE, DMD,
Defendants.
This matter comes before the Court on Defendant’s, Mary Oyeleye’s, motion to set
aside the Court’s order, Filing No. 43, and objection, Filing No. 44. For the reasons set forth
herein, the objection is denied. Plaintiff is ordered to file an affidavit in support of her motion
to serve by publication, and the Court will rule on the motion to set aside once such affidavit
is filed.
I.

BACKGROUND

This case is in its early stages. Plaintiff, Rebecca Kitchens, filed suit on January 31,
2024, against the United States and Mary Oyeleye, DMD, among others, alleging negligence
under the Federal Tort Claims Act in relation to dental care she received at a federally funded
medical facility. Filing No. 1. To date, Kitchens has been unable to perfect service on
Oyeleye, despite numerous attempts. Kitchens’s counsel has attempted to serve Oyeleye
by searching dental business listings for a current address, by contacting Oyeleye’s
contracting company, and by attempting service by mail at two different addresses which
were returned with no available forwarding information. Filing No. 39; Filing No. 39-1.
On May 2, 2024, Kitchens filed a motion to extend the time in which to serve Oyeleye.
Filing No. 39. She noted her diligence in attempting to serve Oyeleye and sought additional
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time to perfect service. Filing No. 39 at 2. The appointed special master granted Kitchens’s
motion for an additional 45 days in which to serve Oyeleye. Filing No. 40, text order.
On May 3, 2024, Kitchens filed a motion to serve Oyeleye by publication. Filing No.
41. The appointed special master granted the motion. Filing No. 42.
II.

ANALYSIS

Oyeleye has specially appeared to object to service of process. She has filed a
motion to set aside the order granting leave to serve by publication, Filing No. 43, and an
objection to the special master’s order extending the time to serve, Filing No. 44.
Under the Order Appointing Master in this case, Filing No. 34 at 3, and Federal Rule
of Civil Procedure 53(f), the Court reviews orders from the special master de novo as to both
factual findings and legal conclusions.
As to the time limit for service, Federal Rule of Civil Procedure 4 states as follows:
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.
Fed. R. Civ. P. 4(m).
As to service by publication, Federal Rule of Civil Procedure 4(e) states that a plaintiff
may serve a defendant by following the law of the state in which the district court is located,
in this case, Nebraska. Nebraska law permits service by “[u]pon motion and showing by
affidavit that service cannot be made with reasonable diligence by any other method
provided by statute.” Neb. Rev. Stat. § 25-517.02.
Oyeleye argues the Court should have dismissed the complaint against her because
more than ninety days have elapsed before she was served. Filing No. 43 at 1; Filing No.
44 at 1. However, dismissal for failure to prosecute under Rule 4(m) is not automatic—the
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rule requires the Court to give a plaintiff additional time for “good cause for the failure [to
timely serve].” Fed. R. Civ. P. 4(m). Here, Kitchens documented her numerous, diligent
attempts to serve Oyeleye, thereby demonstrating good cause to extend the time to serve.
Kitchens’s motion to extend service and motion to serve by publication both asserted
her inability to locate a valid address for service of process for Oyeleye; circumstances which
would warrant service by publication. However, the statute requires that a showing of
alternate service be made “by affidavit.” Neb. Rev. Stat. § 25-517.02. Here, Kitchens’s
motion for alternate service was not supported by an affidavit.

See Filing No. 41.

Accordingly, Kitchens is ordered not to commence service by publication and to file an
affidavit in support of her request to serve by publication. After receiving the affidavit, the
Court will rule on the motion to set aside the order allowing service by publication. Filing
No. 43.
IT IS ORDERED:
1. Defendant’s objection, Filing No. 44, is denied.
2. Plaintiff is ordered to file an affidavit in support of her motion for alternate service at
which time the Court will rule on Defendant’s motion to set aside, Filing No. 43.

Dated this 10th day of May, 2024.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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