Cetina v. Michelin North America et al
Filing
262
ORDER RULING ON REPORT AND RECOMMENDATION adopting 248 Report and Recommendation. Defendant David Brown is dismissed without prejudice as a defendant in this action. Signed by Honorable Timothy M Cain on 11/22/2013. (gpre, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Tanya L. Cetina,
Michelin North America,
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)
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)
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Newbold Services, Clint Morgan,
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Dave Murphy, Dave Brown, and
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Dave Mauger,
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Plaintiff,
v.
C/A No. 6:12-2222-TMC
OPINION & ORDER
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Defendants.
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Plaintiff, proceeding pro se, filed this action alleging claims pursuant to Title VII of
the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act
(“AEDA”), and the Americans with Disabilities Act of 1990 (“ADA”), and state law claims
against several defendants. Before the court is the magistrate judge’s Report and
Recommendation (“Report”),1 recommending that the sole remaining unserved
Defendant in this action be dismissed sua sponte. (ECF No. 248).2 Plaintiff has timely
filed objections. (ECF No. 258).
Rule 4(m) of the Federal Rules of Civil Procedure:
If a defendant is not served within 120 days after the complaint is filed, the
1
Pursuant to the provisions of 28U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02 (B)
(2)(g), D.S.C., all pretrial matters in cases alleging employment discrimination claims are
referred to a United States Magistrate Judge for consideration.
2
Defendant Sandra Chavez was dismissed on November 7, 2012. (ECF No. 35 );
Defendants Michelin North America and Dave Mauger were dismissed on June 11, 2013 (ECF
No. 194); and Defendants Newbold Services, Clint Morgan, and Dave Murphy’ s Motion for
Summary Judgment was granted on October 11, 2013 (ECF No. 246).
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.” But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate
period.
Fed.R.Civ.P. 4(m). The court calculates the120-day period contemplated in Rule 4(m)
from the date on which the Clerk of Court issued the original summonses, which in this
case is October 2, 2012. Robinson v. Clipse, 602 F.3d 605, 608-09 (4th Cir. 2010).
Accordingly, the 120-day period for service of process expired on January 30, 2013.
Because Plaintiff is proceeding in forma pauperis, she is entitled to have the
Summons and Complaint served by the United States Marshals Service (“USMS”). See
28 U.S.C. § 1915(d); Fed.R.Civ.P. 4(c)(3). See also Robinson v. Clipse, 602 F.3d 605,
608 (4th Cir. 2010) (“In forma pauperis plaintiffs must rely on the district court and the
[USMS] to effect service of process according to 28 U.S.C. § 1915.”). However, Plaintiff
must provide sufficient information to locate a defendant with “reasonable effort.”
Richardson v. Johnson, 598 F.3d 734, 738–40 (11th Cir.2010).
The initial proper form order filed in this action states:
Plaintiff must provide Defendant’s complete street address on the form
(not a post office box). Plaintiff must provide, and is responsible for,
information sufficient to identify Defendants on the Forms USM-285. The
United States Marshal cannot serve an improperly identified defendant,
and unserved defendants may be dismissed as parties to a case.
(ECF No. 10) (emphasis in original). In response, Plaintiff listed Defendant Brown and
noted that he and two other defendant may be found at “their workplace, Newbold
Services,” and she gave the address for Newbold. (ECF No. 13 at 2). However, in the
same document, Plaintiff stated she was “still attempting to locate David Brown. No
records found possibly hiding in OHIO. On the Run.” (Id. at 3). Subsequently, on
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October 2, 2012, the magistrate judge directed that Defendant Brown not be served
because Plaintiff did not complete a Form USM-285 for this individual.
Plaintiff's attention is directed to Rule 4(m) of the Federal Rules of Civil
Procedure, which provides that unless a defendant is served within 120
days after the complaint is filed, this court may dismiss an action without
prejudice as to that defendant. Case law interpreting Rule 4(m)(or its
predecessor, Rule 4(j)) has held that a complaint must be dismissed,
absent a showing of good cause, if the complaint is not served within 120
days after it is filed. See Mendez v. Elliot,45 F.3d 75, 78-80 (4th Cir.1995)
(collecting cases).
(ECF No. 17 at 1-2).
Five months later on March 5, 2013, and after the 120-days had run, Plaintiff filed
a Motion for an Extension of Time for Service of Defendant Dave Brown. (ECF No.
155). In her motion, Plaintiff asked the court “to consider Dave Brown’s phone number
to effect service upon him.” (Id. at 1). On March 11, 2013, the magistrate judge denied
the motion with leave to re-file and gave the Plaintiff ten days to re-file a motion in which
she demonstrated good cause for her failure to timely serve Defendant Brown. (ECF
No. 156). On March 22, 2013, Plaintiff filed a renewed motion for an extension of time
to serve Defendant Brown (ECF No. 166), and on March 28, 2013, Plaintiff filed a
proposed summons for Brown (ECF No. 167). On April 1, 2013, the magistrate judge
granted Plaintiff a 30-day extension to serve Brown. (ECF No. 168).
On the summons filed on March 28th, Plaintiff listed an address in Greenville as
Defendant Brown’s and noted a phone number. (ECF No. 167-1). On April 5, without
explanation, Plaintiff sent in a second summons for Defendant Brown listing another
address for Brown in Anderson and noting the same cell phone number. (ECF No. 173).
On May 16, 2013, the summons listing the Greenville address was returned by the
USMS as having been executed, and the second summons listing the Anderson
address was returned by the USMS as unexecuted with a notation that Defendant
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Brown had already been served. (ECF Nos. 190, 191).
On May 14, 2013, the David T. Brown who was served with the complaint filed a
motion for dismissal on the ground that he was not the David Brown that Plaintiff was
attempting to sue. (ECF No. 187). On June 13, 2013, Plaintiff filed a response to the
motion, acknowledging that the David Brown who was served was not the proper party,
and agreeing that the court should grant the motion to dismiss. (ECF No. 199). On that
same day, Plaintiff also filed a motion for the issuance of another subpoena for
Defendant Brown, noting that Eldon Russ has the proper information for identifying the
correct David Brown. (ECF No. 201). On September 12, 2013, the magistrate judge
denied the motion on the ground that Plaintiff had not provided sufficient information to
identify Defendant Brown, and noting that Plaintiff acknowledges that she does not have
the contact information for Defendant Brown. (ECF No. 232).
On October 15, 2013, the magistrate judge filed a report and recommendation
(“Report”) recommending that Defendant Brown be dismissed sua sponte as a
defendant in this action for Plaintiff’s failure to timely serve him.
(ECF No. 248).
Plaintiff filed objections in which she states that the USMS was “given the correct phone
number” and “their incompetence is not [her] problem.” (ECF No.258).
Dismissal of an action against a defendant under Rule 12(b)(5) for insufficiency
of service is within the discretion of the court. Reinhold v. Tisdale, C.A. No.
8:06–3311–MBS–BHH, 2007 WL 2156661, at *3 (D.S.C. April 30, 2007) (citing
Dimensional Communications, Inc. v. OZ Optics, Ltd., 218 F.Supp.2d 653, 655
(D.N.J.2002)), adopted by 2007 WL 2173368 (D.S.C. July 26, 2007). “Ordinarily,
dismissal is proper when there is prejudice to the defendant or where proper service is
unlikely to be accomplished.” Id. (citing Curcuruto v. Cheshire, 864 F.Supp. 1410, 1411
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(S.D.Ga.1994)). Here, Plaintiff has failed to effectuate service within any reasonable
time period and she has not provided sufficient information to accomplish service.
Simply providing a cell phone number or referring the USMS to a third person is
insufficient. See Bowman v. Johnson, C.A. No. 3:08-449-HEH, 2010 WL 1225693 (E.D.
Va. March 26, 2010)(dismissing defendant because plaintiff, who provided USMS with
phone number, failed to show diligent efforts to obtain defendant’s address).
Moreover, she has failed to demonstrate good cause for another extension of the
deadline to serve Defendant Brown. For a court to find good cause, a plaintiff must
generally exercise reasonable diligence in trying to effect service. Burns & Russell Co.
of Baltimore v. Oldcastle, Inc., 166 F.Supp.2d 432, 439 n. 9 (D.Md.2001). In other
words, good cause may be found where the plaintiff has “taken some affirmative action
to effectuate service of process upon the defendant or ha[s] been prohibited, through no
fault of his own, from taking such an affirmative action.” Vincent v. Reynolds Memorial
Hosp., Inc., 141 F.R.D. 436, 437 (N.D.W.Va.1992).3
Plaintiff contends that the incompetence of the USMS is the cause of her failure
to serve Defendant Brown. However, rather than the incompetence of the USMS, it is
Plaintiff’s own fault that Defendant Brown has not been served. The USMS served a
David Brown at an address specifically provided by Plaintiff.
3
Moreover, even after
There is some authority for the proposition that good cause is not necessary for such an
extension. See Giacomo-Tano v. Levine, No. 98–2060, 1999 WL 976481, at *2 (4th Cir. Oct.27,
1999) (“Even if a plaintiff does not establish good cause, the district court may in its discretion
grant an extension of time for service.”); Scruggs v. Spartanburg Reg'l Med. Ctr., No. 98–2364,
1999 WL 957698, at *2 (4th Cir. Oct.19, 1999) (“[W]e believe that the district court, in its
discretion, could have extended the time for proper service of process, notwithstanding its
apparent belief to the contrary.”). However, even if the court were to find good cause
unnecessary, the mere fact that a court can extend the period does not mean it should. As
discussed herein, Plaintiff has largely taken no steps to effectuate service on Defendant Brown.
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finding out that the address she provided was incorrect, Plaintiff has made no apparent
attempt to provide a proper address for Defendant Brown. Plaintiff now wants the USMS
to serve Defendant Brown based solely upon a cell phone number. In these
circumstances, Plaintiff bears the responsibility for the failure to effectuate service. See
Bowman v. Johnson, No. 3:08CV449, 2010 WL 1225693, at *1 (E.D.Va. Mar.26, 2010);
Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987) (noting that plaintiff “may not
remain silent and do nothing to effectuate,” service, but rather “[a]t a minimum . . .
should attempt to remedy any apparent defects of which a plaintiff has knowledge”).
Based on the foregoing, the court overrules Plaintiff’s objections and adopts the
Report.
Accordingly, Defendant Dave Brown is dismissed without prejudice as a
defendant in this action.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
November 19, 2013
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules
3 and 4 of the Federal Rules of Appellate Procedure, if applicable.
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