EL v. GREENSBORO POLICE DEPARTMENT et al
MEMORANDUM OPINION AND ORDER. Signed by JUDGE THOMAS D. SCHROEDER on 8/9/2017, that this action is DISMISSED WITHOUT PREJUDICE against all remaining Defendants for failure to issue summonses and failure to effect proper service.(Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GREENSBORO POLICE DEPARTMENT
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
On September 2, 2016, this court issued an order dismissing
Defendants Guilford County Department of Social Services, Michelle
Macadlo, Heather Skeens, Stephen Kory Flowers, Greensboro Police
Department, Wayne Scott, and Nancy B. Vaughan.
The order further
advised Plaintiff that in the absence of any showing of good cause
by Plaintiff by September 16, 2016, the court would dismiss the
action sua sponte but without prejudice against the remaining
Defendants – High Point Police Department; Marty Sumner, High Point
Police Department Chief; Bill Bencini, High Point Mayor; Ron
Orgias, Greensboro Police Department 1 - for failure to effect
proper service pursuant to Federal Rule of Civil Procedure 4(m).
(Doc. 15 at 8-9.)
The court noted that these various Defendants
Plaintiff had already dismissed his claims against Stephanie Reese and
C.E. Jenkins. (Doc. 15 at 2; Doc. 13.)
were subject to dismissal because, in addition to the various
defects in Plaintiff’s lawsuit identified by the Defendants who
filed a motion to dismiss, Plaintiff failed to have a proper
summons issued and served as to these remaining Defendants within
90 days after the filing of the complaint.
Fed. R. Civ. P. 4(m);
Tenenbaum v. PNC Bank Nat. Ass'n, No. CIV.A. DKC 10-2215, 2011 WL
2038550, at *4 (D. Md. May 24, 2011) (quoting Vincent v. Reynolds
Mem'l Hosp., Inc., 141 F.R.D. 436, 437 (N.D.W. Va. 1992)).
On September 15, 2016, Plaintiff simultaneously presented for
filing a “Formal Objection to Order and Memorandum of Judicial
Aversion” (Doc. 16) and a Notice of Appeal to the United States
Court of Appeals for the Fourth Circuit (Doc. 17).
On April 28,
2017, the Fourth Circuit dismissed Plaintiff’s appeal for lack of
jurisdiction in an unpublished opinion.
As this court warned Plaintiff (Doc. 15 at 4-5), it is
apparent from the docket and the summons sent to at least one
Defendant (Doc. 4-4) that El never had summonses issued by the
Clerk of Court in this case.
As such, this violates Federal Rule
of Civil Procedure 4(b), process is insufficient, and the action
against all Defendants should be dismissed.
Fed. R. Civ. P.
12(b)(4); Day'Le Lathon v. UNC-Fayetteville State Univ., No. 5:07CV-105, 2008 WL 60396, at *1 (E.D.N.C. Jan. 2, 2008) (dismissing
pro se plaintiff’s claims for failure to serve summons with clerk’s
signature); Spencer v. Town of Chapel Hill, 290 F. Supp. 2d 655,
658 n.1 (M.D.N.C. 2003) (dismissing § 1983 plaintiff's claims
against local law enforcement officers for plaintiff's failure to
serve a summons and complaint).
In addition, Rule 4(m) provides that if a plaintiff does not
serve a defendant within 90 days after the complaint is filed, the
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) (emphasis added).
While Rule 4(m) does not
define “good cause,” 2 it is generally regarded to mean “reasonable
and diligent efforts to effect service prior to the” deadline.
Chen v. Mayor & City Council of Baltimore, 292 F.R.D. 288, 293 (D.
Md. 2013) (citation omitted).
In an unpublished case, the Fourth
Circuit has recently articulated several factors to consider in
assessing whether good cause has been shown.
See Scott v. Md.
State Dep’t of Labor, 673 F. App’x 299, 305-06 (4th Cir. 2016)
After Henderson v. United States, 517 U.S. 654, 662 (1996) (citing the
Advisory Committee’s Notes on the 1993 Amendments to Rule 4 when noting
that district courts may enlarge time “even if there is no good cause
shown”), and subsequent revisions to Rule 4(m), the Fourth Circuit’s
decision in Mendez v. Elliot, 45 F.3d 75 (4th Cir. 1995) (holding that
a district court lacks discretion to enlarge time absent a showing of
good cause), no longer appears binding.
See, e.g., LHF Productions,
Inc. v. Does, Civil Action No. 3:16CV284, 2016 WL 7423094, at (E.D. Va.
Dec. 22, 2016) (finding that Rule 4(m) unambiguously permits an extension
of time to serve process regardless of whether a plaintiff can show good
(listing the factors of whether delay was outside plaintiff’s
control, the defendant was evasive, the plaintiff acted diligently
or made reasonable efforts, the plaintiff is pro se, the defendant
will be prejudiced, the plaintiff asked for an extension of time
under Rule 6(b)(1)(A)), petition for cert. filed, __ U.S.L.W. __
(U.S. June 23, 2007) (No. 16-1546).
While the Fourth Circuit does
opinions, it has noted that they “are entitled only to the weight
they generate by the persuasiveness of their reasoning.”
Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006)
Here, the court gave Plaintiff notice that it intended to
dismiss these remaining Defendants unless Plaintiff demonstrated
Plaintiff, proceeding pro se, has failed to do so.
He merely filed an objection to this court’s order and stated that
he has attempted to send “copies of the suits to all defendants at
(Doc. 16 at 3.)
Nowhere does Plaintiff claim he
has had summonses properly issued, even after the court identified
this failure as a problem. Plaintiff also failed to properly serve
any Defendant in accordance with applicable law.
no affidavit of service for any Defendant.
sought no extension to effect service.
Thus, the court finds that
Plaintiff has failed to show good cause.
Indeed, there is
Moreover, even in the absence of a showing of good cause, the
court finds no reason to extend the time period in its discretion.
Plaintiff has not requested an extension to cure the defects, nor
has he given any indication that he intends to attempt to remedy
Rather, he is resting on the record as it stands, which is
For all these reasons, the court will dismiss the action
without prejudice against the remaining Defendants.
Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (noting the court has the
authority “to control litigation before them, and this authority
includes the power to order dismissal of an action for failure to
comply with court orders”).
Of course, “dismissal is not a
sanction to be invoked lightly.”
Id. at 95.
To the extent
applicable here, the court has considered “(i) the degree of
personal responsibility of the plaintiff; (ii) the amount of
prejudice caused the defendant[s]; (iii) the existence of a history
of deliberately proceeding in a dilatory fashion, and (iv) the
adjudication while memories remain fresh.
has had multiple opportunities to cure these defects, and no other
previously warned Plaintiff that dismissal would occur if he did
(noting that in assessing the propriety of dismissal
as a sanction, an “explicit warning that a recommendation of
dismissal would result from failure to obey [an] order is a
critical fact . . . .”)
Dismissal without prejudice is an
appropriate remedy that is narrowly tailored to the nature of the
Based on the foregoing, therefore,
IT IS ORDERED that this action is DISMISSED WITHOUT PREJUDICE
against all remaining Defendants for failure to issue summonses
and failure to effect proper service.
Thomas D. Schroeder
United States District Judge
August 9, 2017
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