Dominguez v. Midwest Maintenance Inc

Filing 7

ORDER granting 3 Motion to Dismiss and dismissing this matter with prejudice (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 5/31/2013. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GEORGINA DOMINGUEZ,
Plaintiff,
v.
MIDWEST MAINTENANCE, INC.,
Defendant.

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Case No. CIV-13-475-M

ORDER
Before the Court is defendant’s Motion to Dismiss, filed May 9, 2013. On May 23, 2013,
plaintiff filed her response, and on May 30, 2013, defendant filed its reply. Based upon the parties’
submissions, the Court makes its determination.
I.

Introduction
Plaintiff alleges that defendant committed pregnancy discrimination in violation of the

Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k). On August 15, 2012, the United
States Equal Employment Opportunity Commission (“EEOC”) mailed plaintiff a Dismissal and
Notice of Rights (“Notice”).
On September 28, 2012, plaintiff informed her counsel that the EEOC issued her Notice, and
on that same date, plaintiff filed her petition against defendant in the Oklahoma County District
Court, State of Oklahoma. According to plaintiff, on April 15, 2013, plaintiff’s counsel obtained
the physical copy of the Notice.
Subsequently, on April 19, 2013, plaintiff served defendant, and on May 9, 2013, defendant
removed this matter to this Court. Defendant moves to dismiss on the grounds that plaintiff failed
to show good cause for not timely serving defendant.

II.

Discussion
“[F]ederal courts in removed cases look to the law of the forum state . . . to determine

whether service of process was perfected prior to removal.” Wallace v. Microsoft Corp., 596 F.3d
703, 706 (10th Cir. 2010). Under Oklahoma law, “[i]f service of process is not made upon a
defendant within one hundred eighty (180) days after the filing of the petition and the plaintiff cannot
show good cause why such service was not made within that period, the action shall be deemed
dismissed as to that defendant without prejudice.” Okla. Stat. tit. 12, § 2004(I). Plaintiff bears the
burden to demonstrate good cause why service on the defendant was not made within the prescribed
180-day period. Willis v. Sequoyah House, Inc.,194 P.3d 1285, 1289 (Okla. 2008).
In the case at bar, the Court finds that plaintiff has not demonstrated good cause for her
failure to serve defendant within the 180-days prescribed under Okla. Stat. tit. 12, § 2004(I).
Specifically, plaintiff was well beyond the 180-day limit because she filed her petition on September
28, 2012, but did not serve defendant until April 19, 2013. Moreover, the Court finds that plaintiff
has not shown good cause because, as of September 28, 2012, plaintiff’s counsel was aware that
plaintiff was issued Notice on September 28, 2012, but inexplicably delayed in obtaining a physical
copy of the Notice until April 15, 2013. The Court is further perplexed as to why plaintiff’s counsel
was content with filing the petition based upon plaintiff’s representation that she received the Notice,
but was not content with serving defendant based upon the same representation.
Therefore, the Court finds that plaintiff has not satisfied the service requirement set forth
under Okla. Stat. tit. 12, § 2004(I).
III.

Conclusion
Accordingly, the Court GRANTS defendant’s Motion to Dismiss [docket no. 3] and
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DISMISSES this matter without prejudice.
IT IS SO ORDERED this 31st day of May, 2013.

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