Blount v. Dalworthington Gardens TX City of et al
MEMORANDUM OPINION and ORDER: Came on to be considered the motions of defendant, City of Dalworthington Gardens, titled (1) "Defendant's Motion to Dismiss," 16 and (2) "Defendant's Second Rule 12(b) (4) Motion to Dismiss a nd Brief." 24 The court orders that City's motions to dismiss be, and are hereby, denied. The court further ORDERS that City file by 4:00 p.m. on March 26, 2018, an answer or other response to plaintiff's complaint. (Ordered by Judge John McBryde on 3/12/2018) (bdb)
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IN THE UNITED STATES DISTRICT 10URT
I 2 2018
CLEkK, U.S. D!STRlCT COURT
CITY OF DALWORTHINGTON GARDENS,
Came on to be considered the motions of defendant, City of
Dalworthington Gardens ("City"), titled (1)
to Dismiss," and (2)
"Defendant's Second Rule 12(b) (4) Motion to
Dismiss and Brief.•
Having considered the responses of
plaintiff, Jonathan Blount, to those motions,
the replies thereto
of City, the applicable legal authorities, and the record in this
action, the court has determined that the motions should be
The above-captioned action was initiated by the filing of an
original complaint in the Dallas Division of the United States
District Court for the Northern District of Texas, where it was
'Plaintiffs original complaint named as defendants Officer Ryan Miller, Officer Jeffrey,
Lieutenant Taylor, and City ofDalwmthington Gardens. Defendants Miller, Jeffrey, and Taylor were
dismissed by Final Judgment as to Cetta in Patties signed January 2, 2018.
assigned to the docket of Judge Sam Cummings and the case number
After plaintiff failed to file with the court
proof of service of the summons and complaint on any of the named
defendants within 90 days of the initiation of that action, Judge
Cummings signed an order on December 1, 2017, ordering that
"Plaintiff's claims against all Defendants will be dismissed
without prejudice if proof of service has not been filed by 9:00
a.m. on December 21, 2017."
Doc. 2 3.
On December 14, 2017,
plaintiff filed a motion to consolidate the above-captioned with
another action that was at the time pending before the
undersigned, Case No. 4:17-CV-720-A.
On December 2018, plaintiff
filed a motion seeking "an additional 30 days after the Motion to
Consolidate has been decided, in which to serve the summons and
complaint on Defendants."
Doc. 6 at 3.
On December 20, 2017,
before reaching a decision on either the motion to consolidate or
the motion for an extension of time to serve defendants, Judge
Cummings transferred the above-captioned action to the docket of
The following day, the undersigned ordered plaintiff to
file, by 4:00 p.m. on December 29, 2017, proof of proper service
of summons and complaint on defendants.
The order cautioned that
The "Doc._" reference is to the number assigned to the referenced item on the docket in this
action, No. 4:17-CV-1014-A.
"if plaintiff fails to comply with this order the court will
consider the dismissal, without further notice, of plaintiff's
claims and causes of action against any defendant for whom proof
of service is still lacking, as authorized by Rule 4(m) of the
Federal Rules of Civil Procedure."
Doc. 10 at 4.
29, 2017, after plaintiff filed what purported to be its proof of
service of the summons and complaint on City, but nothing as to
defendants Officer Jeffrey ("Jeffrey"), Ryan Miller ("Miller"),
and Lieutenant Taylor ("Taylor"), the court ordered the dismissal
of Jeffrey, Miller, and Taylor.
The Motions to Dismiss
On January 18, 2018, City filed its first motion to dismiss,
urging the court that plaintiff's service upon on City was not
The court issued an order on January 26, 2018, requiring
a response to the motion by plaintiff.
On February 5, 2018,
before filing a response to the motion, plaintiff filed with the
court an unexecuted return of service, dated January 25, 2018,
and an executed return of service, purporting that service of the
summons and complaint had been made on City through the city
secretary, Lola Hazel, on January 29, 2018.
After being served
by plaintiff, City filed on February 7, 2018, its second motion
to dismiss, urging the court that plaintiff's severely out of
time service on City should not serve to keep plaintiff's claim
in force, and that the court should dismiss plaintiff's claims
against it for failure to comply with the court's December 21,
The court ordered a response from plaintiff, which
it received February 21, 2018.
City filed a reply.'
Pursuant to Rule 4(m) of the Federal Rules of Civil
Procedure, district courts have the authority to dismiss without
prejudice the claims against a defendant who has not been served
within the time prescribed by that rule.
Additional time for
service must be granted whenever a plaintiff can establish good
cause for failing to serve a defendant.
F.3d 20, 21 (5th Cir. 1996).
Thompson v. Brown, 91
"To establish good cause the
plaintiff must demonstrate at least as much as would be required
to show excusable neglect, as to which simple inadvertence or
mistake of counsel or ignorance of the rules usually do not
Peters v. U.S.,
9 F.3d 344, 345 (5th Cir.
1993) (citation and internal quotations omitted).
[when] good cause is lacking, the court has discretionary power
to extend time for service.•
Newby v. Enron Corp., 284 Fed.
'Plaintiff also filed a response, filed on February 8, 2018, to City's first motion to dismiss, to
which City replied, on February 9, 2018.
App'x 146, 149 (5th Cir. 2008) (citing Thompson,
91 F.3d at 21).
such discretionary authority may be exercised when, for example,
the applicable statute of limitations would prevent the refiling
of the lawsuit.
Id.; see also Fed. R. Civ. P. 4(m) advisory
committee's note to 1993 amendment.
Because such a dismissal has the effect of being one with
prejudice, dismissal pursuant to Rule 4(m)
for untimely or
insufficient service of process of a claim the applicable statute
of limitations has run on is only warranted in limited instances.
Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326 (5th Cir.
2008) (noting that such a dismissal "is an extreme sanction that
deprives a litigant of the opportunity to pursue his claim.•
(quoting Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241,
(5th Cir. 1980))); See also Berry v. CIGNA/RSI-CIGNA,
F.2d 1188, 1191 (5th Cir. 1992).
These instances include
where "there is a clear record of delay or contumacious conduct
by the plaintiff,• and (2) when "lesser sanctions would not
prompt diligent prosecution, or the record shows that the
district court employed lesser sanctions that proved to be
Berry, 975 F. 2d at 1191.
"Delay which warrants
dismissal with prejudice must be longer than just a few months:
instead, the delay must be characterized by significant periods
of total inactivity.•
Millan, 546 F.3d at 326-27 (quoting McNeal
v. Papasan, 842 F.2d 787,
791 (5th Cir. 1998)) (internal
Moreover, such a dismissal must generally
be supported by "at least one of three aggravating factors:
delay caused by [the] plaintiff himself and not his attorney,
actual prejudice to the defendant; or (3) delay caused by
Millan, 546 F.3d at 326 (quoting Price v.
McGlathery, 792 F.2d 472, 474
(5th Cir. 1986).
Plaintiff in the above-captioned action delayed properly
serving any named defendant for several months, including failing
twice to comply with court orders to do so.
record indicates that plaintiff has now served City, and the
court has reason to believe that if this action is dismissed, the
applicable statute of limitations will have run on plaintiff's
claims, leaving plaintiff without recourse for any of his alleged
The absence of clear evidence of any aggravating
factors favors permitting plaintiff's continued pursuit of his
claims against City.
City has not identified in either of the
motions to dismiss any potential prejudice City would suffer if
plaintiff is permitted to go forward with his claims against
City, and the papers on file indicate that the negligence of
counsel, rather than counsel's intentional delay or delay caused
by plaintiff himself, caused the delay in serving City.
Accordingly, the court has determined that the motions to dismiss
should be denied, and City should be required to file an answer
or other response to plaintiff's complaint.
for the above stated reasons,
The court orders that City's motions to dismiss be, and are
The court further ORDERS that City file by 4:00 p.m. on
March 26, 2018, an answer or other response to plaintiff's
SIGNED March 12, 2018.
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