Latham v. Avenue East Apartments LLC et al

Filing 10

ORDER. The Court DISMISSES WITHOUT PREJUDICE all claims alleged in Plaintiff Charlene Y. Latham's Complaint (Doc. No. 1 ) for failure of service under Rule 4(m) of the Federal Rules of Civil Procedure. Signed by Judge Charles Goodwin on 11/22/2024. (jb)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CHARLENE Y. LATHAM,
Plaintiff,
v.
AVENUE EAST APARTMENTS, LLC
et al.,
Defendants.

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Case No. CIV-24-350-G

ORDER
On April 8, 2024, Plaintiff Charlene Y. Latham, proceeding pro se, initiated this
action. See Compl. (Doc. No. 1).
On or about July 7, 2024, Plaintiff’s 90-day period for service provided by Federal
Rule of Civil Procedure 4(m) expired, and there was no indication from the docket that
Plaintiff had obtained summons or perfected service of this lawsuit on any defendant.
Accordingly, on August 5, 2024, the Court directed Plaintiff to show cause in writing,
within 14 days, why the claims against the defendants should not be dismissed. See Order
of Aug. 5, 2024 (Doc. No. 9). The Court’s Order was mailed to Plaintiff at her address of
record.
Plaintiff has not responded to the Order or shown that service has been perfected as
any defendant. Nor has any defendant answered or otherwise indicated awareness of
Plaintiff’s lawsuit.
A plaintiff in a federal civil lawsuit is required to have each defendant served with
a summons and a copy of the pleading by a date certain. See Fed. R. Civ. P. 4(c)(1), (m).

Although Plaintiff is a pro se litigant, she is required to comply with the same rules of
procedure governing other litigants, including Rule 4. See DiCesare v. Stuart, 12 F.3d 973,
980 (10th Cir. 1993) (stating that pro se plaintiff was “obligated to follow the requirements
of Fed. R. Civ. P. 4”). Thus, Plaintiff’s failure to complete proper service upon a defendant
within the prescribed time limit is grounds for dismissal of all claims against that party,
absent any justification for this failure. See Fed. R. Civ. P. 4(m) (“If a defendant is not
served within 90 days after the complaint is filed, the court . . . 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.”).
Plaintiff has made no attempt to show “good cause” under Rule 4(m) for the failure
to complete service by the extended deadline, and no “good cause” is otherwise reflected
in the record before the Court. Fed. R. Civ. P. 4(m). Notwithstanding Plaintiff’s failure to
show good cause, the undersigned still must consider whether a permissive extension of
time to complete service of process is warranted. See Espinoza v. United States, 52 F.3d
838, 841 (10th Cir. 1995). The Tenth Circuit has noted that a permissive extension of time
may be appropriate where “policy considerations might weigh in favor of granting a
permissive extension of time.” Id. at 842. In making this determination, the Court must
consider: (1) whether “the applicable statute of limitations would bar the refiled action”;
(2) whether the plaintiff tried to follow “the complex requirements of multiple service”
when serving the United States, its agencies, or employees; and (3) whether there is reason
to protect a pro se plaintiff “from consequences of confusion or delay attending the
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resolution of an in forma pauperis petition.” Espinoza, 52 F.3d at 842 & n.8 (internal
quotation marks omitted).
Here, the undersigned finds no policy considerations meriting additional time for
service. Plaintiff has made no further request for additional time or assistance with service.
Although Plaintiff is proceeding in forma pauperis, Plaintiff was informed of her ability to
have service performed by the United States Marshals Service and of the necessary steps
to do so. See Order of May 24, 2024 (Doc. No. 7). Further, assuming Plaintiff’s statute of
limitations has expired, a dismissal under Rule 4(m) would not necessarily bar the refiling
of certain of Plaintiff’s claims. Oklahoma’s “savings statute” may save certain claims
because a Rule 4(m) dismissal represents a failure “otherwise than on the merits” within
the meaning of title 12, section 100 of the Oklahoma Statutes. Young v. Rios, No. CIV-15641-R, 2018 WL 2079509, at *2 (W.D. Okla. May 4, 2018). In other words, Plaintiff may
be able to refile such claims within one year of dismissal without prejudice “although the
time limit for commencing the action shall have expired before the new action is filed.”
Okla. Stat. tit. 12, § 100; see Young, 2018 WL 2079509, at *2.
Thus, the Espinoza factors weigh in favor of dismissal under Rule 4(m), and the
Court discerns no other policy considerations that might warrant a permissive extension in
this case. Further, Plaintiff has been warned that failure to accomplish service would result
in dismissal and has been afforded an opportunity to justify her failure to do so. See Smith
v. Glanz, 662 F. App’x 595, 596, 597-98 (10th Cir. 2016).

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CONCLUSION
Accordingly, the Court DISMISSES WITHOUT PREJUDICE all claims alleged in
Plaintiff Charlene Y. Latham’s Complaint (Doc. No. 1) for failure of service under Rule
4(m) of the Federal Rules of Civil Procedure.
A separate judgment shall be entered.
IT IS SO ORDERED this 22nd day of November, 2024.

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