Robinson v. Fred Store Inc

Filing 48

ORDER RULING ON 43 REPORT AND RECOMMENDATIONS and denying 24 Motion to Dismiss for Failure to State a Claim, filed by Fred Store Inc. Plaintiff will have 45 days from filing of this Order to serve process upon defendant. No further extensions will be granted to perfect service absent compelling circumstances. Signed by Honorable Terry L Wooten on 3/13/2012. (ydav, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Virginia Reed Robinson,

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Plaintiff,
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vs.
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Fred Store, Inc.
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Defendant.
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___________________________________ )

Civil Action No. 1:10-2847-TLW-JRM

ORDER

On November 3, 2010, Plaintiff Virginia Reed Robinson, (“Plaintiff”), brought this civil
action, pro se, asserting claims of employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. (Title VII). (Doc. # 1). On August 5,
2011, Defendant Fred’s Stores of Tennessee, Inc., (“Defendant”) moved to dismiss. (Doc. # 24).
The matter now comes before this Court for review of the Report and Recommendation
(Athe Report@) filed by United States Magistrate Judge Joseph R. McCrorey to whom this case
had previously been assigned. In the Report, the Magistrate Judge recommends that Defendant’s
Motion to Dismiss be granted pursuant to Federal Rule of Civil Procedure 12(b)(5) based upon
Plaintiff’s failure to properly serve process on Defendant. (Doc. # 43). Plaintiff filed objections
to the Report as well as a supplement, in which she asks for additional time to perfect service.
(Docs. # 45 and # 47). In her objections, Plaintiff states that she “was unaware of the 120 day
time frame.” (Doc. # 45). She further states that she was not aware of the process to be
followed. (Docs. # 45 and # 47). It is undisputed that Plaintiff did serve a person associated
with the Defendant who was not the proper agent for service.
In conducting its review, the Court applies the following standard:

The magistrate judge makes only a recommendation to the Court, to which any
party may file written objections...The Court is not bound by the recommendation
of the magistrate judge but, instead, retains responsibility for the final
determination. The Court is required to make a de novo determination of those
portions of the report or specified findings or recommendation as to which an
objection is made. However, the Court is not required to review, under a de novo
or any other standard, the factual or legal conclusions of the magistrate judge as to
those portions of the Report and Recommendation to which no objections are
addressed. While the level of scrutiny entailed by the Court's review of the
Report thus depends on whether or not objections have been filed, in either case,
the Court is free, after review, to accept, reject, or modify any of the magistrate
judge's findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992)
(citations omitted).
In light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report
and the objections filed by the Plaintiff. After careful review of the Report and objections
thereto, the Court chooses not to accept the Report insofar as it recommends dismissal of
Plaintiff’s complaint based upon inadequate service of process. (Doc. # 43). Defendant’s Motion
to Dismiss is therefore DENIED. (Doc. # 24).
Rule 4(m) of the Federal Rules of Civil Procedure states that “the court must extend the
time for service for an appropriate period” upon a showing of good cause.
Here the Court finds the Magistrate Judge’s analysis to be well-reasoned. However, the
Court is persuaded to afford this pro se Plaintiff one final opportunity to properly serve process
in this case. It is therefore ORDERED that the Plaintiff will have forty-five (45) days from the
filing of this Order to serve process upon Defendant in a manner permitted by the Federal Rules
of Civil Procedure. No further extensions will be granted to perfect service in this case absent
compelling circumstances.

IT IS SO ORDERED.

s/Terry L. Wooten____
TERRY L. WOOTEN
United States District Judge

March 13, 2012
Florence, South Carolina