Winston v. Bechtel Jacobs Co., LLC et al

Filing 24

MEMORANDUM AND OPINION: For these reasons, defendants' Motion to Dismiss [Doc. 7] will be GRANTED, and plaintiff's action will be DISMISSED without prejudice. All other pending motions will be DENIED as moot. The Clerk of Court will be DIRECTED to close this case. Signed by Chief District Judge Thomas A Varlan on 3/16/2015. (KMK, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
CASSANDRA WINSTON,
Plaintiff,
v.
BECHTEL JACOBS CO., LLC, and
URS/CH2M OAK RIDGE,
Defendants.

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No.: 3:13-CV-192-TAV-CCS

MEMORANDUM OPINION
This civil action is before the Court on Defendants’ Motion to Dismiss [Doc. 7].
Defendants move the Court to dismiss this case, in which plaintiff seeks relief against
defendants for their alleged discriminatory employment actions and retaliation against her
on account of her race, gender, and age, pursuant to Title VII of the Civil Rights Act of
1964 (“Civil Rights Act”) and the Age Discrimination in Employment Act (“ADEA”).
As grounds for their motion, defendants argue that plaintiff has failed to prosecute her
case, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure; failed to effect
service of process within 120 days of filing her complaint, pursuant to Rule 4(m) of the
Federal Rules of Civil Procedure; and failed to state a claim for relief, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.
Plaintiff has responded in opposition to the Motion to Dismiss [Doc. 12]. As part
of her response, plaintiff attached three documents related to prior filings that the parties
made with the Equal Employment Opportunity Commission (“EEOC”) regarding this

case [Doc. 12-1; Doc. 12-2; Doc. 12-3]. Defendants have replied to plaintiff’s response
[Doc. 14]. On the same day that defendants filed their reply memorandum, they also
filed a motion to exclude matters outside of the pleadings [Doc. 13], in which they argue
that the Court should not consider the three documents that plaintiff attached to her
response to the Motion to Dismiss. Plaintiff has not responded to defendants’ motion to
exclude.
Each defendant has since filed a motion for summary judgment, seeking dismissal
of plaintiff’s action without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil
Procedure, or judgment as a matter of law pursuant to Rule 56 of the Federal Rules of
Civil Procedure [Doc. 20; Doc. 22]. Neither motion for summary judgment is currently
ripe for disposition. For the reasons that follow, the Court will grant defendants’ Motion
to Dismiss pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Accordingly,
the Court will dismiss plaintiff’s action without prejudice and deny all other pending
motions as moot.
I.

Background
Plaintiff filed this action on April 5, 2013 [Doc. 1]. Plaintiff alleges that defendant

Bechtel Jacobs Co. discriminated against her on the basis of race, gender, and age when it
terminated her employment as a Project Controls Engineer II, and that defendant
URS/CH2M Oak Ridge discriminated against her on those same bases when it failed to
hire her [Doc. 1 p. 3–7]. Plaintiff also alleges that both defendants retaliated against her
“for her EEO activities and/or opposition to discriminatory practices” [Doc. 1 p. 5–6].
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On April 8, 2013, the Clerk of Court made an entry on the docket sheet through
the Court’s CM/ECF system, stating, “No summons received with initiating documents.
Therefore, summons not issued as to Bechtel Jacobs Co., LLC and URS/CH2M Oak
Ridge.”1 The electronic receipt for the entry reflects that notice of the entry was given to
plaintiff’s counsel of record via email.
No additional activity occurred in the case for more than one year. On May 6,
2014, the Court issued an order for plaintiff to show cause why her case should not be
dismissed for failure to prosecute [Doc. 2]. The order to show cause directed plaintiff to
respond within twenty-one days.

Prior to the response deadline, plaintiff’s counsel

contacted the Court’s judicial assistant to explain that plaintiff needed several additional
days to file a response [Doc. 12 p. 3].
On May 30, 2014, plaintiff responded to the order to show cause [Doc. 5]. In it,
her counsel stated:
The lack of service of process on the defendants and activity
in this case results entirely from plaintiff’s counsel’s
erroneous belief that he had, in fact, served them. He has had
discussions with counsel for the defendants following
termination of the EEOC proceedings and initiation of this
action concerning the settlement of the plaintiff’s
discrimination charges. He understood that the defendants
had been served with process and clearly was mistaken about
that. In fact, summonses had not even been issued.
[Id. at p. 1]. On the same day that she filed her response to the order to show cause,
plaintiff requested that the relevant summonses be issued [Doc. 3]. The Clerk of Court
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As reflected by the docket sheet and corresponding electronic receipt, the entry was
filed on April 5, 2013, and entered on April 8, 2013.
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issued the summonses [Doc. 4], and plaintiff served defendants with process on June 4,
2014 [Doc. 6].
Defendants’ Motion to Dismiss followed on June 25, 2014 [Doc. 7]. Defendants
dispute the representations of plaintiff’s counsel insofar as “there have not been any such
settlement discussions between Plaintiff’s counsel and ‘counsel for the defendants’ (or
Defendants themselves)” [Doc. 8 p. 4]. Plaintiff has not addressed this assertion by
defendants.
II.

Analysis
Rule 4(m) of the Federal Rules of Civil Procedure provides, in relevant part:
If a defendant is not served within 120 days after the
complaint is filed, 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. 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). Accordingly, the rule requires a two-part analysis: first, the Court
must determine whether a plaintiff has shown good cause for failing to timely serve a
defendant, and if the plaintiff so shows, the Court must extend the time for service for an
appropriate period; second, if good cause has not been shown, the Court must either
dismiss the action without prejudice or direct that service be made within a specified time
period. Stewart v. Tenn. Valley Auth., 238 F.3d 424, 2000 WL 1785749, at *1 (6th Cir.
Nov. 21, 2000).
A.

Good Cause
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Under Rule 4(m), plaintiff bears the burden of establishing that there was good
cause for her failure to serve defendants within 120 days of filing her complaint. See
Habib v. Gen. Motors Corp., 15 F.3d 72, 73 (6th Cir. 1994) (discussing the standard
under former Rule 4(j)). Plaintiff’s counsel admits fault for failing to timely serve
defendants, explaining that he mistakenly believed defendants had been served [Doc. 5 p.
1; Doc. 12 p. 2].
To establish “good cause” under Rule 4(m), a party must show “at least excusable
neglect.” Stewart, 2000 WL 1785749, at *1 (citing Moncrief v. Stone, 961 F.2d 595, 597
(6th Cir. 1992)) (finding that good cause had not been shown by a plaintiff whose
attorney was hospitalized shortly before the expiration the 120-day period, because
plaintiff had failed to effect service of process for more than seventy days after filing his
complaint). “Neglect exists where the failure to do something occurred because of a
simple, faultless omission to act, or because of a party’s carelessness.” Turner v. City of
Taylor, 412 F.3d 629, 650 (6th Cir. 2005) (citing Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship, 507 U.S. 380, 388 (1993)).
“The determination of whether a case of neglect was excusable is at bottom an
equitable one, taking account of all relevant circumstances surrounding the party’s
omission.” Id. (quoting Pioneer, 507 U.S. at 395) (internal quotation marks omitted).
These facts and circumstances include “the danger of prejudice to the [non-neglectful
party], the length of the delay and its impact on judicial proceedings, the reason for the
delay, including whether it was within the reasonable control of the [neglectful party],
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and whether the [neglectful party] acted in good faith.” Id. (quoting Pioneer, 507 U.S. at
395) (internal quotation marks omitted).

“[T]he excusable neglect standard has

consistently been held to be strict, and can be met only in extraordinary cases.” Id. at 650
(alteration in original) (quoting Marsh v. Richardson, 873 F.2d 129, 130 (6th Cir. 1989))
(internal quotations marks omitted).
Assuming that plaintiff’s failure to serve defendant within 120 days of filing her
complaint was the result of neglect, it is not excusable. Plaintiff did not effect service of
process until June 4, 2014, approximately fourteen months after filing her complaint.
Plaintiff had full control over the time and manner in which defendants would be served.
Her counsel simply failed to timely effect service, despite receiving notice that
summonses had not been issued.
Therefore, the Court concludes that plaintiff has not shown good cause under Rule
4(m) for her failure to serve defendants within 120 days of filing her complaint. See
Davis v. Brady, 9 F.3d 107, 1993 WL 430137, at *3 (6th Cir. Oct. 22, 1993) (“[I]t is clear
that a plaintiff cannot establish good cause by showing mere inadvertence on the part of
counsel.”).
B.

Discretion to Permit Late Service of Process

Nevertheless, the Court “has discretion to permit late service even absent a
showing of good cause.” Stewart, 2000 WL 1785749, at *1 (citing Henderson v. United
States, 517 U.S. 654, 662 (1996)). “Relief may be justified, for example, if the applicable
statute of limitations would bar the refiled action, or if the defendant is evading service or
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conceals a defect in attempted service.” Fed. R. Civ. P. 4 advisory committee’s note
(1993).
The Sixth Circuit has suggested that a court’s discretion to permit late service
under Rule 4(m) is limited by the excusable neglect standard governing untimely requests
for extensions of time set forth in Rule 6(b) of the Federal Rules of Civil Procedure. See
Turner, 412 F.3d at 650. In Turner, the Court of Appeals reviewed a district court’s
denial of a plaintiff’s motion to reissue summonses after the expiration of the 120-day
period provided by Rule 4(m). Id. The Court of Appeals affirmed, citing Rule 6(b) in
explaining that “[b]ecause Plaintiff moved to reissue the summonses for Defendants . . .
more than 120 days after the filing of his complaint, he must show that his failure to act
was the result of excusable neglect.” Id. at 650 (citing Fed. R. Civ. P. 6(b)); see Mann v.
Castiel, 681 F.3d 368, 376 (D.C. Cir. 2012) (citing Turner as standing for the proposition
that Rule 6(b) limits a court’s discretion to permit late service of process); United States
v. McLaughlin, 470 F.3d 698, 700 (7th Cir. 2006) (same).
Turner has been criticized as being in tension with the plain language of Rule
4(m), McLaughlin, 407 F.3d at 700, and distinguished as conflating “good cause” with
“excusable neglect” within the first prong of the Rule 4(m) inquiry without reaching the
second prong. Dunham-Kiely v. United States, 2010 WL 1882119, at *2 n.2 (E.D. Tenn.
May 11, 2010).

But Turner is not the only Sixth Circuit decision to suggest that

permission for late service of process under Rule 4(m) ultimately turns on the question of
whether “good cause,” which requires at least excusable neglect, has been shown. See
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Nafziger v. McDermott Intern., Inc., 467 F.3d 514, 521 (6th Cir. 2006) (quoting Rule
4(m), prior to the 2007 restyling, in explaining that “[d]ismissal of the action ‘shall’
follow unless the ‘plaintiff shows good cause’ for failure to meet the 120-day deadline”).
If the Court’s discretion to permit late service of process is limited by Rule 6(b),
then plaintiff’s action should be dismissed, because plaintiff’s failure to timely serve
defendants was not the result of excusable neglect.

The Court need not determine

whether its discretion is so limited, however, because an extension of time to permit late
service would not be appropriate even if it were purely discretionary.
Defendants submit that the Court should consider the following five factor test in
deciding whether to permit late service of process:
(1) whether a significant extension of time is required; (2)
whether an extension of time would cause actual prejudice to
the defendant other than the inherent ‘prejudice’ in having to
defend the lawsuit; (3) whether the defendant had actual
notice of the lawsuit; (4) whether dismissal of the complaint
without prejudice under Rule 4(m) would substantially
prejudice the plaintiffs, i.e., cause the plaintiffs’ suit to be
time-barred by the statute of limitations; and (5) whether the
plaintiffs have made diligent, good faith efforts to effect
proper service of process.
Treadway v. Cal. Prods. Corp., 2013 WL 6078637, at *6 (E.D. Tenn. Nov. 19, 2013)
(quoting Taylor v. Stanley Works, 2002 WL 32058966, at *7 (E.D. Tenn. July 16, 2002))
(internal quotation marks omitted); see also Slenzka v. Landstar Ranger, Inc., 204 F.R.D.
322, 326 (E.D. Mich. 2001). Although the parties have not cited any binding authority
prescribing the use of this test, the Court concludes that the test provides a helpful guide
for the Court’s exercise of discretion.
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1.

Whether a Significant Extension of Time is Required

Plaintiff did not serve defendants until approximately fourteen months after filing
her complaint. Although plaintiff eventually served defendants, she neither moved for
nor received permission to effectuate untimely service. In order to designate plaintiff’s
service of process as timely and therefore proper, a significant extension of time would
be required—more than three times the 120-day period provided by Rule 4(m).
Therefore, the first factor counsels against permitting late service.
2.

Whether an Extension of Time Would Cause Actual Prejudice to
Defendants

Defendants submit that they have been prejudiced by plaintiff’s delay in effecting
service of process, because “[t]here are certain individuals who Defendants will likely
need to call as witnesses in this matter who are no longer employed by Defendants and
who may now be unavailable as witnesses” [Doc. 8 p. 4–5]. Defendants do not provide
any additional details about these former employees to support why the former
employees are “likely” to be witnesses, nor do defendants explain why the former
employees may be “unavailable” as witnesses. Accordingly, the Court concludes that
any prejudice, if it exists, would be minor. Therefore, the second factor counsels in favor
of permitting late service.
3.

Whether Defendants Had Actual Notice of the Lawsuit

There is no evidence that defendants had actual notice of plaintiff’s lawsuit prior
to being served on June 4, 2014. Defendants apparently were aware of plaintiff’s EEOC
charge against them, because they filed a copy of it as an exhibit to their Motion to
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Dismiss [Doc. 7-1]. As a result, they likely had some prior knowledge of the claims that
plaintiff sets forth in her present complaint. Nevertheless, any prior knowledge of those
claims is attenuated by the fact that defendants were not served with process until well
after the statute of limitations had expired and the 120-day period for service of process
had passed.
Plaintiff seeks relief pursuant to Title VII of the Civil Rights Act and the ADEA.
Both statutes require a plaintiff to bring a civil action within ninety days of receiving a
right-to-sue letter issued by the EEOC. 42 U.S.C. § 2000e–5(f)(1) (Civil Rights Act); 29
U.S.C. § 626(e) (ADEA); see Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149–
50 (1984) (discussing the limitations period for bringing an action under Title VII of the
Civil Rights Act). The EEOC issued its right-to-sue letter to plaintiff on January 2, 2013
[Doc. 1 p. 3]. Plaintiff filed her complaint ninety-three days later, on April 5, 2013.
Although the record does not establish the precise date that plaintiff received the right-tosue letter, she certainly received it no later than the date that she initiated her lawsuit.
The parties disagree about whether they or their counsel engaged in settlement
discussions between the termination of the EEOC proceedings and the entry of the
Court’s order to show cause.

The Court can discern no reason why it should be

especially difficult for the parties to resolve such a factual question, but neither party has
submitted competent evidence to support its assertions.

Consequently, the Court

concludes that there is no evidence of communication between the parties during the
relevant time period.
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Accordingly, there is no evidence in the record that defendants had reason to
believe a lawsuit was forthcoming on the late date when they were served with process.
Zapata v. City of New York, 502 F.3d 192, 198–99 (2d Cir. 2007). Therefore, the third
factor counsels against permitting late service.
4.

Whether Dismissal Would Substantially Prejudice Plaintiff

Dismissal would substantially prejudice plaintiff. Because more than ninety days
have passed since the EEOC issued its right-to-sue letter, plaintiff would be barred by the
statute of limitations from refiling her claims. Accordingly, a dismissal without prejudice
would effectively be a dismissal with prejudice. Therefore, the fourth factor counsels in
favor of permitting late service.
5.

Whether Plaintiff Has Made Diligent, Good Faith Efforts to
Effect Proper Service of Process

Plaintiff has not made diligent, good faith efforts to timely effect proper service of
process. Plaintiff wholly failed to take the steps necessary to effect service of process
within the 120-day period provided by Rule 4(m). She failed to take such steps despite
receiving notice that summonses had not been issued. Indeed, it is unclear whether
plaintiff ever would have effected service of process had the Court not issued its order to
show cause. Therefore, the fifth factor counsels against permitting late service.
C.

Weighing the Discretionary Factors

“[T]he requirement of proper service of process ‘is not some mindless
technicality.’” Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991)
(quoting Del Raine v. Carlson, 826 F.2d 698, 704 (7th Cir. 1987)). Proper service of
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process implicates a defendant’s right to constitutional due process. Omni Capital Int’l
Ltd. v. Rudolph Wolff & Co., 484 U.S. 97, 104 (1987); Friedman, 929 F.2d at 1156.
“Before a federal court may exercise personal jurisdiction over a defendant, the
procedural requirement of service of summons must be satisfied.” Omni Capital, 484
U.S. at 104.
Public policy favors disposition of cases on their merits. Little v. Yeutter, 984 F.2d
160, 162 (6th Cir. 1993) (citing Nealey v. Transp. Maritima Mexicana, S.A., 662 F.2d
1275, 1279 (9th Cir. 1980)). Nevertheless, when there is no good cause for a plaintiff’s
failure to comply with Rule 4(m), “a district court may in its discretion still dismiss the
case, even after considering that the statute of limitations has run and the refiling of an
action is barred.” Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1306 (3d Cir.
1995); accord Cardenas v. City of Chicago, 646 F.3d 1001, 1006–07 (7th Cir. 2011);
Kurka v. Iowa County, 628 F.3d 953, 959–60 (8th Cir. 2010); Zapata, 502 F.3d at 197;
Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1133 (11th Cir. 2005); see also
Friedman, 929 F.2d at 1158 (finding that “[d]espite the severity” of a mandatory
dismissal under former Rule 4(j), “dismissal is nevertheless warranted”).
If plaintiffs were always permitted to execute late service of process when
dismissal would render their claims time-barred, it would “effectively eviscerate Rule
4(m) and defeat the purpose and bar of statutes of repose.” Petrucelli, 46 F.3d at 1306
n.7; cf. Turner, 412 F.3d at 651 (“If the magistrate judge was compelled to grant the

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motion to reissue the summonses in these circumstances, then it is unclear how the 120
day service rule ever could be enforced.”).
Here, the equitable considerations surrounding the significant extension of time
that would be required in order to permit late service of process (factor one), and
plaintiff’s complete lack of diligence in timely effecting service of process (factor five),
are sufficient to warrant dismissal. Adding to the weight of equities counseling for
dismissal is the lack of evidence that defendants had reason to believe a lawsuit would be
forthcoming after the statute of limitations had expired and the 120-day period for service
of process had passed (factor three). All of these considerations align with the general
need to ensure that Rule 4 continues to effectively regulate the time and manner in which
parties are served with process.
In these circumstances, the equitable considerations surrounding the minor amount
of actual prejudice that defendants would suffer from late service (factor two), and the
significant amount of prejudice that plaintiff would suffer from a denial of an extension
of time (factor four), are not strong enough to overcome the reasons counseling for
dismissal.
Because plaintiff has not served defendants within the 120-day period provided by
Rule 4(m), and an extension of time is not warranted, the Court “must dismiss the action
without prejudice.” Fed. R. Civ. P. 4(m); Walker v. Donahoe, 528 Fed. App’x. 439, 441
(6th Cir. 2013) (affirming dismissal pursuant to Rule 4(m) when service had not been
completed for more than nine months).
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III.

Conclusion
For these reasons, defendants’ Motion to Dismiss [Doc. 7] will be GRANTED,

and plaintiff’s action will be DISMISSED without prejudice.

All other pending

motions will be DENIED as moot. The Clerk of Court will be DIRECTED to close this
case.
ORDER ACCORDINGLY.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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