Dyal v. GE Gas Turbines

Filing 46

OPINION AND ORDER adopting 41 Report and Recommendation; Denying 34 Motion to Dismiss. Signed by Honorable J Michelle Childs on 6/25/2013.(mbro)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Lana Sue Dyal,

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Plaintiff,
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v.
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GE Gas Turbines,
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Defendant.
)
____________________________________)

Civil Action No. 6:11-03238-JMC

OPINION AND ORDER

This matter is before the court on review of the Magistrate Judge’s Report and
Recommendation (“Report”), filed on May 9, 2013, [Dkt. No. 41]. The Report recommends that
Defendant GE Gas Turbine’s (“Defendant”) Motion to Dismiss pursuant to Federal Rules of
Civil Procedure 12(b)(4) and 12(b)(5), [Dkt. No. 31], be denied. Plaintiff Lana Sue Dyal
(“Plaintiff”) filed a pro se Complaint on November 29, 2011 (“Complaint”), [Dkt. No. 1]
alleging that Defendant, her former employer, had discriminated against her on the basis of race
in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended.
This order comes after Defendant timely filed its Objections to the Report and Recommendation
(“Objections”) on May 28, 2013 [Dkt. No. 44]. For the reasons set forth herein, the court
ACCEPTS the Magistrate Judge’s Report and DENIES Defendant’s Motion to Dismiss.
PROCEDURAL BACKGROUND
The court must determine whether dismissal of Plaintiff’s claim for insufficient process
or insufficient service of process is appropriate. Fed. R. Civ. P. 12(b)(4)–(5). Defendant
contends that dismissal is appropriate based on Plaintiff’s failure to meet the deadline for service

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of process outlined in Rule 4(m) of the Federal Rules of Civil Procedure. Consequently, some
attention to the chronology of events is warranted.
Plaintiff filed her Complaint on November 29, 2011. On that same day, she also filed a
motion for leave to proceed in forma pauperis, [Dkt. No. 3], which the Magistrate Judge granted
one week later on December 6, 2011, [Dkt. No. 10]. Also on December 6, 2011, the Magistrate
Judge issued a Proper Form Order directing Plaintiff how to bring her case into proper form for
purposes of service. [Dkt. No. 11]. To do so, the Proper Form Order instructed Plaintiff to
complete and return a Form USM-285—a form used by litigants to provide service of process
information to the United States Marshals Service—and to submit answers to the Magistrate
Judge’s special interrogatories by January 3, 2012. [Id.] Plaintiff was warned that failure to
comply with the Proper Form Order could result in dismissal of her case. [Id.]
Despite the warning, Plaintiff failed to timely bring her case into proper form. On
January 18, 2012, the Magistrate Judge recommended that this court dismiss Plaintiff’s
Complaint without prejudice, [Dkt. No. 15], and issued an order directing the Clerk of Court not
to authorize service, [Dkt. No. 16]. A little over two weeks later, on February 3, 2012, Plaintiff
filed objections to the recommendation, [Dkt. No. 19] and simultaneously submitted the
documents required by the Proper Form Order. [Dkt. Nos. 20, 21].
Plaintiff notified the court of her late filings on March 2, 2012, [Dkt. No. 23]; thereafter,
on November 9, 2012, the court decided to recommit the matter to the Magistrate Judge, in light
of Plaintiff’s belated filings, [Dkt. No. 24]. Roughly two months later, on January 17, 2013, the
Magistrate Judge issued an order authorizing service of process on Defendant by the Clerk of
Court, [Dkt. No. 27], and Defendant received the summons, its first notification of the case’s
existence, on January 23, 2013.

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After receiving the summons, Defendant filed its Motion to Dismiss on February 5, 2013.
The parties subsequently filed pleadings opposing and supporting the motion, and the Magistrate
Judge issued his Report on May 9, 2013, recommending that the motion be denied.
LEGAL STANDARDS
The Magistrate Judge's Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a
recommendation to this court.

The recommendation has no presumptive weight. The

responsibility to make a final determination remains with this court. See Mathews v. Weber, 423
U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those
portions of the Report to which specific objections are made, and the court may accept, reject, or
modify, in whole or in part, the Magistrate Judge's recommendation or recommit the matter with
instructions. See 28 U.S.C. § 636(b)(1).
Rule 4(m) requires that a defendant be served within 120 days after a complaint is filed.
Fed. R. Civ. P. 4(m). If a defendant is not served within this time period, then “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.” Id. However, if
the plaintiff can show “good cause” for failing to timely serve defendant within the 120-day
period, then “the court must extend the time for service for an appropriate period.”

Id.

Furthermore, even if a plaintiff fails to show good cause, the court, in some circumstances, may
grant an extension of time, if it deems it to be appropriate. See Henderson v. United States, 517
U.S. 654, 658 n.5 (1996); Giacomo-Tano v. Levine, 199 F.3d 1327 (4th Cir. 1999) (per curiam)
(unpublished table decision).

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The good cause exception typically requires that a plaintiff exercise due diligence in
effecting service. Clyburn v. Champagne, No. 6:10-1925-TMC, 2012 WL 4478971, at *5
(D.S.C. Sept. 28, 2012). Courts often will find good cause when “‘external factors . . . stifle a
plaintiff’s due diligence.” Id. (citations omitted) (alterations in original). Thus, some exogenous
factor must delay or prevent service, rather than the party’s own neglect or carelessness.
If a plaintiff does not effect service within the 120 days required by Rule 4(m), cannot
show good cause, and the court does not otherwise deem it appropriate to extend the time period;
then it is proper for the court to dismiss the complaint pursuant to Rules 12(b)(4) and 12(b)(5)
for insufficient process or insufficient service of process.
DISCUSSION
Defendant has timely filed Objections to the Report, [Dkt. No. 44]. The court must
therefore review the Motion to Dismiss de novo. After a thorough review of the record and the
arguments of the parties, the court agrees with the Magistrate Judge that the motion must be
denied.
For its part, Defendant offers a well-reasoned, methodical analysis of the timeliness
issues presented by this case. Defendant correctly points out that Rule 4(m) is designed to
ensure that defendants are not prejudiced by delay. The rule affords them “a fair opportunity to
answer the complaint and present defenses and objections.” Henderson, 517 U.S. at 671. In this
case, Defendant contends that it was prejudiced because it remained unaware of Plaintiff’s
claims for nearly two and a half years after the alleged discrimination occurred. But showing
prejudice alone is insufficient; Defendant must first show that Plaintiff has failed to meet the
requirements of Rule 4(m).

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Defendant argues that because Plaintiff failed to effect service within the 120-day period,
she can only avoid dismissal by showing good cause for the failure. Thus, much of Defendant
and Plaintiff’s arguments concern only whether Plaintiff has exhibited good cause meriting
extension of the service period. Defendant does an admirable job directing the court’s attention
to case law that would be pertinent if the good cause exception were at issue. The Report,
however, determined that the good cause exception was not an issue in this case.
The Report pointed to a case overlooked in Defendant’s briefs. That case, Robinson v.
Clipse, 602 F.3d 605 (4th Cir. 2010), was quoted at length by the Magistrate Judge and warrants
the same treatment here.
[The plaintiff] argues that the 120-day service period should have been tolled until
the district court screened his in forma pauperis complaint and authorized service
of process. We agree. In forma pauperis plaintiffs must rely on the district court
and the U.S. Marshals Service to effect service of process according to 28 U.S.C.
§ 1915. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). Therefore, an in forma
pauperis plaintiff should not be penalized for a delay caused by the court’s
consideration of his complaint. That delay “is solely within the control of the
district court.” Paulk v. Dep't of Air Force, Chanute Air Force Base, 830 F.2d 79,
83 (7th Cir.1987); Urrutia v. Harrisburg County Police Dep't, 91 F.3d 451, 453
(3d Cir.1996) (“An in forma pauperis plaintiff has no control over the amount of
time the district court takes to make the § 1915(d) ruling.”). Indeed, here, there
was an order in place prohibiting service of process. Thus, the period of time
before the district court authorized service by the Marshals Service does not count
against Robinson for purposes of determining the limitation period.
The same result is reached under Rule 4(m)'s good cause standard. Rule 4(m)
requires the district court to “extend the time for service to an appropriate period”
if there is “good cause” for not serving the defendant “within 120 days after the
complaint is filed.” Fed. R. Civ. P. 4(m). . . . Because the delay caused by the
court’s failure to authorize the issuance and service of process is beyond the
control of an in forma pauperis plaintiff, such failure constitutes good cause
requiring the 120-day period to be extended. See Graham v. Satkoski, 51 F.3d
710, 713 (7th Cir.1995) (“The prisoner may rely on the Marshals Service to serve
process, and the Marshals Service’s failure to complete service is automatically
‘good cause’ to extend time for service under Rule 4(m).”).

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Robinson, 602 F.3d at 608–09. Applying Robinson to the instant case, the Report concluded that
Plaintiff, who also proceeds in forma pauperis, has effected service within the 120-day period set
by Rule 4(m).
The court agrees with the Report’s conclusion. The process of screening Plaintiff’s in
forma pauperis Complaint and authorizing service did not reach completion until January 17,
2013. According to Robinson, the period of time up until that point is tolled for Rule 4(m)
purposes; thus, Plaintiff effected service within the 120-day window when the Marshals Service
provided Defendant the summons on January 23, 2013. Furthermore, the court holds that even
had the 120 days expired, Plaintiff would still have good cause for not having served Defendant.
An exogenous force caused the belatedness in service because a court’s delay in authorizing
service is beyond the control of an in forma pauperis complainant, like Plaintiff, who must rely
on the court and the Marshals Service to effect service. Whether applying the 120-day period or
the good cause exception, the result is the same: Plaintiff effected service within the parameters
set by Rule 4(m).
Defendant attempts to distinguish Robinson from the instant case in two ways. First,
Defendant points out that Robinson involved a “relation back” analysis pursuant to Federal Rule
of Civil Procedure 15(c). See Robinson, 602 F.3d at 608. This fact does not change the court’s
view. Rule 15(c)(1)(C), the specific rule at issue in Robinson, requires that service be effected
within the Rule 4(m) period when a plaintiff adds a party to her suit or changes a party’s name,
but this requirement is in addition to the other relation back requirements found in Rule
15(c)(1)(B). Fed. R. Civ. P. 15(c)(1)(C). In effect, Rule 4(m) is layered on top of the relation
back requirements, which is why the Robinson court could analyze the two issues separately.
Thus, Robinson’s analysis of Rule 4(m) applies outside of the Rule 15(c) framework.

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Second, Defendant attempts to distinguish Robinson by noting that, unlike the plaintiff in
Robinson, Plaintiff in this case was the initial cause of delay. Plaintiff caused delay by not
complying with the Magistrate Judge’s Proper Form Order in a timely manner.

Plaintiff

thereafter submitted the required documents, but not before the Magistrate Judge had
recommended the court dismiss the case without prejudice. However, Plaintiff had to wait until
the court ruled on that recommendation for process to be served. Defendant does not explain
why the precise action or omission on the part of Plaintiff that triggers the court’s review of her
in forma pauperis Complaint should matter. It has no bearing on the length of time taken by the
court to screen the Complaint and authorize service or on the Marshals Service to effect service
of process.

Consequently, Defendant’s attempt to distinguish Robinson on this ground is

unpersuasive.
Having determined that Plaintiff has satisfied the requirements set forth in Rule 4(m), the
court concludes that dismissal of the Complaint pursuant to Rules 12(b)(4) or 12(b)(5) is
inappropriate.
CONCLUSION
Based on the aforementioned reasons and a thorough review of the Report and
Recommendation and the record in this case, the court ACCEPTS the Magistrate Judge’s Report
and Recommendation. [Dkt. No. 41]. It is therefore ORDERED that the Defendant’s Motion to
Dismiss [Dkt. No. 34] is DENIED.
IT IS SO ORDERED.

United States District Judge
Greenville, South Carolina
June 25, 2013

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