Duggan v. Hartford Life And Accident Insurance Company et al

Filing 23

ORDER AND REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re denying 11 MOTION to Dismiss filed by Hartford Life And Accident Insurance Company; granting 18 MOTION Request to Move Out Date of Order to Conduct Rule 26(f) Conference re 9 Order Setting Deadlines filed by Lynne Duggan. The Court recommends that Defendant's Motion to Dismiss (see Dkts. 7 & 11) be DENIED and that this case proceed. The Court further finds that Plaintiff's request to extend the deadline to conduct Rule 26(f) conference (Dkt. 18) should be GRANTED. The parties are directed to confer in accordance with the Court's March 5, 2012 Order to Conduct Rule 26(f) Conference and to submit their joint report and proposed agreed scheduling order on or before July 6, 2012. Failure to fully participate and cooperate by Plaintiff may result in dismissal of her claims. Signed by Magistrate Judge Don D. Bush on 6/1/2012. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

LYNNE DUGGAN

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Plaintiff,
VS.
HARTFORD LIFE AND ACCIDENT
INSURANCE CO., EMERSON
ELECTRIC CO., EMERSON ELECTRIC
CO. LONG TERM DISABILITY PLAN and
EMERSON PROCESS MANAGEMENT
Defendants.

Case No. 4:11cv605

ORDER AND REPORT AND RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE
On this day came on for consideration Defendant’s Motion to Dismiss (see Dkts. 7 & 11) and
Plaintiff’s Motion to Request to Move Out of Date Order to Conduct Rule 26(f) Conference (Dkt.
18). As set forth below, the Court GRANTS Plaintiff’s motion and finds that the motion to dismiss
should be DENIED.
BACKGROUND
Pro se Plaintiff filed her complaint in this matter on September 17, 2011. On September 26,
2011, the Court granted her request to proceed in forma pauperis and directed her to prepare
summons for issuance by the Clerk of the Court and service by the United States Marshal. See Dkt.
5. On January 12, 2012 – 117 days after Plaintiff filed suit – Plaintiff had summons issued and the
materials were forwarded to the United States Marshal for service. On May 15, 2012, the United

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States Marshal’s returns of service were filed, indicating that service was executed on Defendants
on or about February 7, 2012 (see Dkts 19 - 22).
STANDARD
Defendant seeks dismissal based on lack of proper service. Rule 4 of the Federal Rules of
Civil Procedure sets forth the guidelines to determine what constitutes valid service of process. FED .
R. CIV . P. 4. If a plaintiff has not effected proper service within 120 days of filing the complaint, the
court may either dismiss the action without prejudice or allow additional time for service. FED . R.
CIV . P. 4(m). Cf. Grant-Brooks v. Nationscredit Home Equity Servs., 2002 WL 424566 (N.D. Tex.
2002) (quashing service of process but denying motion to dismiss because 120-day time period to
serve defendant had not expired).
Upon a showing of good cause for the failure of service, the court must extend the time for
service. FED . R. CIV . P. 4(m). Good cause is more than inadvertence, mistake of counsel, or
ignorance of the rules. See System Signs Supplies v. U.S. Dep’t of Justice, 903 F.2d 1011, 1013 (5th
Cir. 1990). The plaintiff must show excusable neglect, as well as establish good faith and a
reasonable basis for not serving the summons and complaint within the time allowed by the rules.
Id. Although pro se status does not wholly excuse a litigant’s failure to effect service, it can provide
grounds for leniency in finding that there is good cause – especially where there is evidence that the
defendant had notice of the suit despite the failure to effect service. Id. at 1013-14. And, even where
there is no good cause shown, the court may, in its discretion, extend the time for service. Thompson
v. Brown, 91 F. 3d 20, 21 (5th Cir. 1996).

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ANALYSIS
In this case, Defendant argues that it was served on February 5, 2012 – past the 120 day
deadline. Defendant also argues that the “summons obtained by Plaintiff was defective in that it
failed to modify the deadline by which Defendant Hartford’s answer was due in accordance with the
Court’s order.” Dkt. 7 at ¶8. Defendant provides no further argument or authority as to this
argument and does not demonstrate what order it references.
Plaintiff has argued in her response that she relied on Local Rule CV-5 in believing that her
complaint had been properly served. Local Rule CV-5 provides in part:
(d) Service by Facsimile or Electronic Means Authorized. Parties may serve
copies of pleadings and other case related documents to other parties by facsimile
or electronic means in compliance with Local Rule CV-5(a) in lieu of service and
notice by mail. Such service is deemed complete upon sending. Service after 5:00
p.m. Central Time shall be deemed served on the following day.
(e) Service of Documents Filed by Pro Se Litigants. A document filed by a pro
se litigant shall be deemed “served” for purposes of calculating deadlines under
the Local Rules or Federal Rules of Civil Procedure on the date it is electronically
docketed in the court’s CM/ECF system.

Although ignorance of the rules is not an excuse, given the Plaintiff’s pro se status and in the
Court’s discretion, the Court finds that the motion to dismiss should be GRANTED. The 120-day
period to serve expired on January 15, 2012, and Plaintiff had summons issued shortly before that.
Moreover, although there was a significant delay between the issuance of the Court’s September
order regarding the issuance of summons and the actual issuance of summons, Plaintiff has argued
that she erroneously relied on a Local Rule in believing the complaint had already been served
electronically. While Plaintiff is expected to fully understand all Rules in the future, the Court finds

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that leniency is warranted herein and good cause has been shown to extend the time to serve.
As to Defendant’s claim that the summons served less than 30 days after the 120-day
deadline was “defective in that it failed to modify the deadline by which Defendant Hartford’s
answer was due in accordance with the Court’s order,” the Court declines to dismiss on this ground.
The only order on the record of this case prior to Defendant’s motion was the Court’s order
permitting Plaintiff to proceed in forma pauperis and directing the issuance of summons. It contains
no directives regarding the modification of deadlines.
Therefore, the Court recommends that Defendant’s Motion to Dismiss (see Dkts. 7 & 11) be
DENIED and that this case proceed. The Court further finds that Plaintiff’s request to extend the
deadline to conduct Rule 26(f) conference (Dkt. 18) should be GRANTED. The parties are directed
to confer in accordance with the Court’s March 5, 2012 Order to Conduct Rule 26(f) Conference and
to submit their joint report and proposed agreed scheduling order on or before July 6, 2012. Failure
to fully participate and cooperate by Plaintiff may result in dismissal of her claims.
Finally, the Court notes that, although the Court has granted Plaintiff an extension, if Plaintiff
intends to prosecute her claims here, she is expected to fully and timely proceed in this case with or
without counsel. While she will be entitled to some deference as a pro se party, assuming she
remains unrepresented, the Court will not tolerate any dilatory tactics or baseless excuses for conduct
herein. The parties are expected to proceed on the merits of the claims herein.
Within fourteen (14) days after service of the magistrate judge’s report, any party may serve
and file written objections to the findings and recommendations of the magistrate judge regarding
the motion to dismiss. 28 U.S.C.A. § 636(b)(1)(C).

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Failure to timely file written objections to the proposed findings and recommendations

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contained in this report shall bar an aggrieved party from de novo review by the district court of the
proposed findings and recommendations and from appellate review of factual findings accepted or
adopted by the district court except on grounds of plain error or manifest injustice. Thomas v. Arn,
474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).

SIGNED this 1st day of June, 2012.
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DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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