Workman v. University of Akron
Memorandum Opinion and Order: Defendant's motion to dismiss is denied. (Doc. No. 16 .) Defendant's motion to continue the exchange of initial disclosures is moot, and the Clerk is directed to terminate the motion. (Doc. No. 15 .) Judge Sara Lioi on 3/24/2017. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
UNIVERSITY OF AKRON,
CASE NO. 5:16-cv-156
JUDGE SARA LIOI
MEMORANDUM OPINION AND
Before the Court is the motion of defendant University of Akron (“defendant” or
“University”) to dismiss the complaint of plaintiff Dana Workman (“plaintiff” or “Workman”)
pursuant to Fed. R. Civ. P. 4(m), and 12(b)(2) and (5). (Doc. No. 16 [“Mot.”].) Plaintiff has
opposed the motion (Doc. No. 18 [“Opp’n”]), to which defendant has replied (Doc. No. 19
[“Reply”]). For the reasons that follow, the motion is denied.
Plaintiff was formerly a student in defendant’s Marriage and Family Counselling
program. She alleges that defendant discriminated against her with respect to participation in the
program, and ultimately terminated her from the program, because of her gender and pregnancy
in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. and 34
C.F.R. § 106.40(b)(2) and (b)(5). (Doc. No. 1 [“Compl.”] ¶ 66.)
The complaint was filed on January 22, 2016. Workman first attempted service upon the
University on February 18, 2016, and the docket reflects that an undated return of service
addressed to “University of Akron, c/o BDB Agent Company, 3800 Embassy Parkway, Suite
#300, Akron, Ohio 44333” was filed on February 25, 2016. (Doc. No. 6.) On May 4, 2016,
service was again attempted, and a summons and complaint was issued to University of Akron,
c/o Sydney C. Foster, Jr. J.D., Assistant Vice President and General Counsel. Service was
perfected on May 9, 2016 (Doc. No. 9). Further details regarding plaintiff’s attempt to serve
defendant are discussed in the Court’s analysis.
In the motion, defendant argues that the complaint was not served within 90 days after it
was filed as required by Fed. R. Civ. P. 4(m), and plaintiff cannot establish good cause for failing
to perfect timely service. Accordingly, defendant contends the case should be dismissed for lack
of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2), and insufficient service of process
pursuant to Fed. R. Civ. P. 12(b)(5).
A. Fed. R. Civ. P. 4(m)
Fed. R. Civ. P. 4(m) provides that:
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. ***
Rule 4(m) directs the Court to undertake a two part analysis. First, the Court must
determine whether plaintiff has shown good cause for the failure to effect timely service. If
plaintiff has shown good cause, “the court must extend the time for service for an appropriate
period.” Fed. R. Civ. P. 4(m). Second, if plaintiff has not shown good cause, the Court must
either (1) dismiss the action without prejudice, or (2) direct that service be perfected within a
specified time. Warrior Imports, Inc. v. 2 Crave, 317 F.R.D. 66, 69 (N.D. Ohio 2016) (citing
Henderson v. United States, 517 U.S. 654, 663, 116 S. Ct. 1638, 134 L. Ed. 2d 880 (1996)).
Workman’s complaint was filed January 22, 2016. Service was not perfected upon the
University until May 9, 2016—18 days after the 90 day period for service under Rule 4(m)
expired. The Court will first consider whether plaintiff had good cause for failing to timely serve
1. Plaintiff has not established good cause for untimely service
Establishing good cause is the responsibility of the party opposing the motion to dismiss,
and “‘necessitates a demonstration of why service was not made within the time constraints [of
the Rule.]’” Warrior Imports, 317 F.R.D. at 69 (quoting Habib v. GMC, 15 F.3d 72, 73 (6th Cir.
1994)); see also Nafziger v. McDermott Int’l, Inc., 467 F.3d 514, 521 (6th Cir. 2006). Rule 4(m)
does not define “good cause,” but the Sixth Circuit has repeatedly recognized that extraordinary
circumstances may warrant a finding of “good cause” such that untimely service may be
excused. See e.g., Habib, 15 F.3d at 73 (finding “good cause” where a seriously ill, pro se
plaintiff made a good faith but flawed effort to perfect service); Byrd v. Stone, 94 F.3d 217, 220
(6th Cir. 1996) (vacating and remanding the judgment of the court below for dismissing the
claim of a plaintiff proceeding in forma pauperis, where plaintiff failed to perfect service due to
errors made by the court clerk and United States Marshals assigned to the task). By contrast, the
Sixth Circuit has refused to find “good cause” based on vague claims of hardship or unexpected
difficulties in perfecting service. See, e.g., Nafziger, 467 F.3d at 521–22 (personal matters
involving the welfare of counsel’s children, coupled with a lack of assistance from co-counsel,
did not constitute “good cause”).
Plaintiff posits that she has good cause for untimely service because she made reasonable
and diligent efforts to perfect service. In support, plaintiff points out that she timely effected
service upon BDB Agent, Co. (“BDB Agent”), an entity which previously indicated to plaintiff
that it represented the University. When plaintiff’s counsel learned that BDB Agent could not
accept service for the University, service was thereafter properly perfected only 18 days after the
90 day time period expired. (Opp’n at 93-94.)
With respect to plaintiff’s first point, the University vigorously argues that plaintiff was
told before the complaint was filed that BDB Agent could not accept service on behalf of the
University. Defendant maintains that James Simon (“Simon”) sent a letter to plaintiff’s counsel
advising that BDB Agent could not accept service for the University. Specifically, defendant
quotes Simon’s letter to counsel for plaintiff dated February 25, 2016, which states that “[a]s we
previously communicated to you and your firm on September 14, 2015, BDB Agent Co. is not
the statutory agent for the University of Akron (the “University”). Accordingly, we have no
authority to receive service of process on behalf of the University.” (Doc. No. 16-1 (emphasis
in original).) Defendant, however, does not provide the September 14, 2015 letter to which
Simon’s February 25 letter refers. The University acknowledges that “months” before the
complaint was filed, Workman sent BDB Agent a demand letter regarding her claims against the
University. (Reply at 100.) Simon replied to plaintiff’s counsel by letter dated September 14,
2015, which plaintiff attaches to her opposition.1 Contrary to the University’s argument, this
Both sides attach correspondence to their briefs in support of their respective arguments regarding Rule 4(m).
letter does not state that BDB Agent cannot accept service on behalf of the University. Rather,
the letter states: “Enclosed is a letter we received from your firm with regard to [Dayna
Workman’s claims]. While we do represent the University on other matters, we are not
authorized to receive this type of general correspondence on behalf of the University.” (Doc. No.
18-2 at 99.)
The parties disagree as to when plaintiff’s counsel received Simon’s letter of February
25, 2016. Plaintiff contends that notwithstanding the date of the letter, it was not received until
March 21, 2016. (Opp’n at 92.) But even assuming that plaintiff’s counsel did not receive
Simon’s February 25 letter until March 21, more than a month passed until service was again
attempted on May 4, 2016 (already beyond the 90 day time period for service required by Rule
4(m)), this time successfully.
Plaintiff offers no reason at all for her counsel’s slow motion effort at service, nor does
she offer any reason why an extension of time to perfect service was not sought from the Court.
Inadvertent failures, mistakes, and unexpected difficulties in perfecting service do not constitute
good cause for non-compliance with the requirements of Rule 4(m). Warrior Imports, 317
F.R.D. at 69 (citations omitted). Accordingly, the Court concludes that plaintiff has not shown
good cause for failing to timely serve defendant within the 90 day time period.
2. The Court exercises its discretion to extend the time for service
Even in the absence of good cause for failing to timely perfect service, Rule 4(m) gives
the Court discretion to extend the time for service but does not require the Court to do so. Id. at
70 (citations omitted). In determining whether to exercise this discretion, the factors considered
by the Court include:
(1) whether a significant extension of time was required; (2) whether an extension
of time would prejudice the defendant other than the inherent ‘prejudice’ in
having to defend the suit; (3) whether the defendant had actual notice of the
lawsuit; (4) whether a dismissal without prejudice would substantially prejudice
the plaintiff[;] and (5) whether the plaintiff had made any good faith efforts at
effecting proper service of process.
Id. (quoting Stafford v. Franklin Cnty., Ohio, No. 2:04–CV–178, 2005 WL 1523369, at *3 (S.D.
Ohio June 28, 2005) (citations omitted)) (further citation omitted).
With respect to the first factor, an 18 day delay in perfecting service is not significant in
light of the facts of this case. See Rosch v. Browning Masonic Cmty., Inc., No. 3:07 CV 3665,
2008 WL 2365017, at *2 (N.D. Ohio June 5, 2008) (one day delay not significant) (citing Wise v.
Dep’t of Def., 196 F.R.D. 52, 57 (S.D. Ohio 1999) (one month delay not significant)). This factor
weighs in favor of extending the time for service.
As to the second factor, defendant argues that it has been prejudiced by the 18 day delay
in two ways: (1) plaintiff’s damages continued to accrue; and (2) the University should
reasonably have been able to anticipate that plaintiff decided not to pursue the matter. While
plaintiff may have been less than prompt in perfecting service, the defendant has not articulated
any actual prejudice of significance resulting from the 18 day delay.2 There has been no delay in
the administration of this case due to plaintiff’s tardy service. The Court conducted a case
management conference and instructed the parties to proceed with scheduled dates and
deadlines. (See July 6, 2016 Minutes of Proceedings.) The parties’ joint status reports indicate
that they have proceeded as instructed and without difficulty. A lack of prejudice does not
Lack of prejudice to the defendant is insufficient to establish good cause. The aforementioned five factor analysis,
however, is not used to determine whether plaintiff has established good cause for untimely service, but whether the
Court should exercise its discretion to permit late service notwithstanding a lack of good cause for untimely service.
See Warrior Imports, 317 F.R.D. at 70 n.3 (citing Dunham–Kiely v. United States, No. 3:08-cv-114, 2010 WL
1882119, at *5 (E.D. Tenn. May 11, 2010)).
automatically support an exercise of discretion to extend the time for service. See Infocision
Mgmt. v. Found. for Moral Law, Inc., Nos. 5:08 cv 1342. 5:08 cv 1412, 2009 WL 9408837, at *5
(N.D. Ohio Apr. 24, 2009) (citing Bogle–Assegai v. Conn., 470 F.3d 498, 508–09 (2d Cir. 2006)
(dismissal without prejudice under Rule 4(m) was not abuse of discretion even though defendant
did not show any prejudice where service was not perfected in over 600 days)). Considering the
circumstances of this case, however, the lack of prejudice weighs in favor of extending the time
for service. The delay was short and discovery has proceeded with no indication that defendant’s
ability to defend the case has been compromised or made more difficult because of the delay. See
Infocision Mgmt., 2009 WL 9408837, at *5 (defendant prejudiced where case was actively
litigated for nine months without his participation) (citing, among authority, Bloomfield v.
County of Imperial, No. 06CV 1340, 2008 WL 45795, at *5 (S.D. Cal. Jan 2, 2008) (finding
prejudice where delays in the case made it more difficult for the defendants to defend suit)).
Regarding the third factor, it is unclear whether defendant had notice of the lawsuit
before service was perfected on May 9, 2016. Plaintiff notified BDB Agent of her claims and
attempted service of the complaint on BDB Agent. Defendant concedes that BDB Agent
represents the University on “other matters,” and defendant does not argue in its motion or reply
that it did not have notice of plaintiff’s lawsuit. Thus, this factor weighs in favor of an extension
of time for service (or, at the very least, does not weigh against it).
With respect to the fourth factor, plaintiff argues that she would be prejudiced by
dismissal of the action because the statute of limitations has now run. (Opp’n at 95.) While this
consideration would not provide good cause for an extension of time in the first prong of a 4(m)
analysis, the Court may consider it when determining whether to exercise its discretion to extend
the time for service. Wise, 196 F.R.D. at 57 (citing Advisory Committee notes following Rule
4(m) (“The new subdivision ... authorizes the court to relieve a plaintiff of the consequences of
an application of this subdivision even if there is no good cause shown.... Relief may be justified,
for example, if the applicable statute of limitations would bar the refiled action....”)); see United
Prod. Sols., Ltd. v. Tara Toy Corp., No. 5:10CV01718, 2011 WL 3566849, at *5 (N.D. Ohio
Aug. 12, 2011) (citing Vergis v. Grand Victoria Casino & Resorts, 199 F.R.D. 216, 217 (S.D.
Ohio 2000)). Given the Advisory Committee notes to Rule 4(m), some courts have found this
factor “‘to be of nearly dispositive weight.’” United Prod. Sols., 2011 WL 3566849, at *5
(quoting Elec. Workers Local 58 Pension Trust Fund v. Rite Elec. Co., No. 10CV11815, 2010
WL 4683883, at *3 (E.D. Mich. Nov. 10, 2010)). This factor weighs in favor of extending the
time for service.
With respect to the final factor, it is difficult for the Court to understand why it took 108
days for plaintiff to effect service upon a well-known institution such as the University. That
said, when plaintiff learned that BDB Agent could not accept service, plaintiff acted to properly
effect service before the time for service expired under Rule 4(m) (Doc. No. 7), although service
was not ultimately perfected until after the time for service expired (Doc. No. 9). While the
explanation of plaintiff’s counsel regarding untimely service may not constitute good cause, such
efforts may constitute a good faith effort to effect service. See Zellner v. Signature Health Servs.-Mansfield, LLC, No. 1:11-CV-2796, 2012 WL 5289584, at *2 (N.D. Ohio Oct. 25, 2012).
In determining whether to exercise its discretion to extend service, no individual factor is
controlling. Rather, all the factors must be considered in combination to determine if there is a
good reason to extend the time for service. See United Prod. Sols., 2011 WL 3566849, at *5). In
this case, the delay in service is short and defendant has identified no lost opportunity to fully
defend and litigate this case. By contrast, plaintiff may be prejudiced if the case is dismissed and,
considering the equities, should not be punished for her counsel’s apparent inattention to service.
Finally, the Court considers the preference in this Circuit to resolve cases on the merits.
See Searcy v. Cnty. of Oakland, 735 F. Supp. 2d 759, 770–71 (E.D. Mich. 2010) (“‘Because
courts favor trials on the merits, ... special care is taken to make certain that a party with a
meritorious [claim] is not deprived of an adjudication because of counsel’s failure to [act] timely.
. . . Without an inquiry into the merits . . . the court would run the risk of cutting short an action
that in all justice should be permitted to proceed in the absence of flagrantly egregious conduct
by counsel.’”) (quoting Buck v. U.S. Dep’t of Agric., Farmers Home Admin., 960 F.2d 603, 607
(6th Cir. 1992)).
Thus, on balance, the Court concludes that it is appropriate to extend the time for service
and resolve this case on the merits. Service was perfected upon defendant on May 9, 2016, and
the Court exercises its discretion to extend the time for service under Rule 4(m) until that date.
Because the Court has extended the time for service, defendant’s Rule 12(b)(2) and (b)(5)
motion is denied.
For the reasons contained herein, defendant’s motion to dismiss is denied. (Doc. No. 16.)
Defendant’s motion to continue the exchange of initial disclosures is moot, and the Clerk is
directed to terminate the motion. (Doc. No. 15.)
IT IS SO ORDERED.
Dated: March 24, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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