Ray v. Kroger Store #734 et al

Filing 13

ORDER denying 9 Motion to Dismiss; denying 12 Motion for Extension of Time.(Signed by Judge Melinda Harmon) Parties notified.(rvazquez)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHARLES E. RAY,

§
§
§
§
§
§
§
§
§
§

Pro Se Plaintiff,
VS.
KROGER STORE #734 AND KROGER,
TEXAS, L.P.,
Defendant.

CIVIL ACTION H-12-3562

OPINION AND ORDER
Pending before the Court in the above referenced cause,
alleging employment discrimination based on race under Title VII,
42 U.S.C. § 2000e et seq., are (1) pro se Plaintiff Charles E.
Ray.’s letter to Judge Stacy (instrument #12), which has been
docketed as “motion for extension of time to find counsel,” and (2)
Defendant

Kroger

Texas

L.P.’s1

motion

to

dismiss

pursuant

to

Federal Rule of Civil Procedure 12(b)(5) for failure to serve
Defendant within 120 days as required by Federal Rule of Civil
Procedure 4(m).2

Because this case is on the undersigned judge’s

1

In its motion, Kroger Texas L.P. states that Kroger Store
#734 does not exist and that each store in Texas is owned an
operated by Kroger Texas L.P., which is not a separate legal entity
and which is the proper party here.
2

Rule 4(m) states 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 he made within a specified time for service. But
-1-

docket, this Court, rather than Magistrate Judge Stacy, addresses
the issues raised in Plaintiff’s letter, which this Court also
construes as a limited response to the motion to dismiss.
After filing his Complaint (#1 and 2) on November 15, 2012,
Plaintiff failed to serve Defendant within 120 days.

On January

15, 2013, this Court denied his application for appointment of
counsel (#4) at government’s expense under 28 U.S.C. § 1915(e)(1).
#5.

At the initial scheduling conference held on April 9, 2013 at

which only Plaintiff appeared because Defendant had not been
served, Magistrate Judge Stacy gave Plaintiff until May 30, 2013 to
obtain counsel and until June 30, 2013 to effect service on
Defendant, and she reset the scheduling conference to August 27,
2013. On July 29, 2013 Defendant filed its motion to dismiss after
Plaintiff failed to effect service by Judge Stacy’s deadline.
Plaintiff, however, did finally effect service on Defendant on July
9, 2013, the 236th day after the filing of the complaint as
emphasized by Defendant (four weeks after Judge Stacy’s extended
deadline), as conceded in Defendant’s motion (#9 at p. 1) and as
evidenced by the return of service of summons (#8).

At the

scheduling conference on August 27, 2013 Magistrate Judge Stacy
extended the deadline for Plaintiff to respond to the motion to
dismiss until September 30, 2013.

Plaintiff filed his letter-

if the plaintiff shows good cause for the failure, the
court must extend the time for service for an appropriate
period. . . .
-2-

response on September 26, 2013.
Defendant urges that the case should be dismissed under Rule
4(m), that Plaintiff also ignored the Magistrate Judge’s extended
deadline, and that Plaintiff has failed to show good cause for not
effecting service within 120 days of the filing of the Complaint.
Plaintiff asks that his case not be dismissed because it has merit,
and he requests more time to find an attorney.3
Although it is apparent that Plaintiff is pro se and a layman
feeling uncertain about how to proceed in this suit, he has not
shown good cause for his extensive delay in effecting service.
Nevertheless, the Fifth Circuit has

“ agree[d] with the majority

of circuits that have found that the plain language of rule 4(m)
broadens a district court’s discretion by allowing it to extend the
time for service even when a plaintiff fails to show good cause.”
Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996), citing Espinoza
v. U.S., 52 F.3d 838, 840 (10th Cir. 1995), and Petrucelli v.
Bohringer and Ratzinger, 46 F.3d 1298, 1304 (3d Cir. 1995).

“If

good cause does not exist, the court may, in its discretion, decide
whether to dismiss the case without prejudice or extend time for
service.”

Thompson, 91 F.3d at 21.

Plaintiff has effected

service, Defendant shows no prejudice from the delay, and the Court
prefers to address this suit on its merits.
discretion the Court
3

Mr Ray is not proceeding as an indigent.
-3-

Therefore it its

ORDERS that Defendant’s motion to dismiss under Rule 12(b)(5)
is DENIED. While Plaintiff

may continue to look for counsel, he

has already been given more than enough time to try to do so.

Thus

the Court
ORDERS that his motion for extension of time (# 12) is DENIED.
The Court admonishes Plaintiff that he must respond timely as best
as he can to any motions filed by Defendant or this case may be
dismissed for failure to prosecute and failure to comply with Court
orders.
SIGNED at Houston, Texas, this

3rd

day of

October , 2013.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

-4-