Schubert v. Ameripride Services Inc

Filing 11

ORDER denying re 6 MOTION to Dismiss filed by Ameripride Services Inc. Signed by Honorable Timothy D. DeGiusti on 8/6/2012. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CAROLYN SCHUBERT,
Plaintiff,
vs.
AMERIPRIDE SERVICES, INC.,
Defendant.

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NO. CIV-12-639-D

ORDER
Before the Court is the Defendant’s motion to dismiss [Doc. No. 1-3] for failure to perfect
service within the requisite time period. Defendant’s motion seeks dismissal pursuant to Oklahoma
law, Okla. Stat. tit. 12 § § 2004(I) and 2012(B), because the motion was filed prior to the removal
of this action from the District Court of Texas County, Oklahoma. Plaintiff filed her response to the
motion after the action was removed.1
Defendant argues that the Oklahoma statute requires service of summons and a copy of the
Petition upon a defendant within 180 days of the filing of the action. In this case, Defendant notes
the Petition was filed on October 28, 2011 in the District Court of Texas county, but the summons
was not issued until January 25, 2012, and Defendant was not served until May 7, 2012. In her
response, Plaintiff does not dispute these dates. However, she argues that the summons issued on
January 25, 2012 was inadvertently mailed to Defendant’s office in Kansas rather than to its
Oklahoma service agent. According to Plaintiff, the certified mailing to the Kansas office was later
returned to Plaintiff’s counsel. Plaintiff then served the summons and Petition by certified mail to
the service agent in Oklahoma.

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Plaintiff’s response reflects the case number assigned by the District Court of Texas County.
Both parties are reminded that filings must now reflect the case number assigned by this Court.

Although it is apparent that Defendant was not timely served, the Court does not find that
dismissal is warranted under these circumstances. When applying the requirements for service
under Fed. R. Civ. P. 4, the Court does not dismiss an action for untimely service where the plaintiff
shows good cause for the delay. See Fed. R. Civ. P. 4(m). Oklahoma’s statute also provides that
a plaintiff may avoid dismissal for untimely service upon a showing of good cause. Okla. Stat. tit.
12 § 2004(I).
Under the circumstances in this case, the Court finds that Plaintiff’s explanation is sufficient
to establish good cause. Plaintiff has now perfected service upon Defendant, and the case will
proceed accordingly. The motion to dismiss [Doc. No. 1-3] is DENIED. Defendant shall file its
Answer or other response to the Petition in accordance with the deadlines established by the Federal
Rules of Civil Procedure and the Local Civil Rules of this Court.
IT IS SO ORDERED this 6th day of August, 2012.

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