Cullum et al v. City of Boerne, Texas et al

Filing 54

ORDER DENYING 44 Motion to Dismiss. Signed by Judge David A. Ezra. (rf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
BOBBY CULLUM and WON SON
CULLUM, individually, and as
representatives of the ESTATE OF
TAVIN SO CULLUM,
Plaintiffs,
vs.
J. SIEMENS, individually;
J. GONZALES, individually;
J. REYES, individually; and
JOHNNY MORENO, individually;
Defendants.

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NO. SA-12-CV-49-DAE

ORDER DENYING DEFENDANTS’ REYES AND MORENO’S RULE
12(b)(4)&(5) MOTION TO DISMISS WITHTOUT PREJUDICE
Plaintiffs Bobby Cullum and Won Son Cullum (collectively,
“Plaintiffs”) brought suit against the police officers involved in the shooting death
of their son, Tavin So Cullum (“Tavin”). On February 7, 2014, the Court heard
argument regarding Defendants Reyes’s and Moreno’s Rule 12(b)(4)&(5) Motion
to Dismiss (Dkt. # 44). Upon careful consideration of the supporting memoranda
as well as the parties’ arguments at the hearing, the Court DENIES Defendants’
Rule 12(b)(4)&(5) Motion to Dismiss WITHOUT PREJUDICE.

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BACKGROUND
I.

Factual Background
On December 2, 2010, San Antonio Police responded to a fire and

domestic disturbance at the home of Bobby and Won Son Cullum in San Antonio,
Texas. (Dkt. # 15 ¶ 9.) Law enforcement officers had been called to this home on
several prior occasions. (Id.) When police arrived on the scene, they discovered
Tavin on his parents’ roof holding a gun. (Id.) Tavin managed to jump from the
roof and flee the scene on his motorcycle. (Id.) Police pursued Tavin for
approximately thirty minutes as he traveled west across two counties on I-10. (Id.
¶¶ 9–10.) The chase ranged in speed from twenty to fifty miles per hour. (Id.
¶ 10.)
While fleeing, Tavin directed his gun behind him in the direction of
police on a couple of occasions, but did not fire. (Id.) However, for most of the
chase, Tavin pointed the gun under his chin and on one occasion pointed it towards
the sky. (Id.) Tavin eventually stopped, got off his motorcycle, and let it fall to the
ground, while holding the gun in his right hand. (Id. ¶ 11.) Then Tavin walked
backwards and raised his left arm with his palm face-up. (Id. ¶¶ 11–12.) Shortly
thereafter, police fatally shot Tavin. 1 (Id.)

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Neither party has alleged which police officer shot Tavin.
2

II.

Procedural Background
Plaintiffs filed their Complaint alleging unlawful use of force in

violation of the Fourth Amendment on January 18, 2012. (Dkt. # 1.) In Plaintiffs’
Original Complaint, they named Defendant police officers Reyes and Moreno as
employees of the Boerne Police Department. Id.
On May 8, 2012, Defendants City of Boerne, Texas, and Officers J.
Siemens and J. Gonzales—the other named Defendants—filed a Federal Rule of
Civil Procedure 12(b)(2), 12(b)(6) and 12(e) motion and indicated that Officers
Reyes and Moreno had been incorrectly identified as employees of the Boerne
Police Department when they were in fact employees of the San Antonio Police
Department. (Dkt. # 5 ¶ 2.)
Plaintiffs failed to timely respond to the motion to dismiss, and on
October 24, 2012, the Court signed an order stating that if the Plaintiffs did not
respond within fourteen days from the date of the order, the case would be
dismissed for want of prosecution. (Dkt. # 6.) Plaintiffs filed a motion for more
time to respond (Dkt. # 6), which the Court granted, allowing Plaintiffs until
December 17, 2012 to respond to the motion to dismiss. (Dkt. # 10.) On
December 17, 2012, Plaintiffs filed their response to Defendants Siemens’s and
Gonzales’s motion to dismiss (Dkt. # 13).

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That same day, Plaintiffs filed a Motion for Leave to File their First
Amended Original Complaint to correctly identify the employer of Defendants
Reyes and Moreno. (Dkt. # 12 ¶ 4.) Plaintiffs admitted in their motion that
Defendants Reyes and Moreno had not been served nor had they made an
appearance. (Id. ¶ 6.) On February 20, 2013, the Court granted Plaintiffs’ Motion
for Leave to File their First Amended Complaint to correctly identify Defendants
Reyes and Moreno. (Dkt. # 14.) That same day, Plaintiffs filed their First
Amended Complaint. (Dkt. # 15.) However, Plaintiffs again failed to serve
Defendants Reyes and Moreno.
In the meantime, Defendants Siemens and Gonzales, police officers
for the City of Boerne, filed a Motion to Dismiss based on qualified immunity. 2
(Dkt. # 18.) At the hearing on October 10, 2013, this Court specifically questioned
Plaintiffs’ counsel regarding the whereabouts of Defendants Reyes and Moreno
and whether they had been properly served. Plaintiffs’ counsel admitted that they
had not served either Defendant Reyes or Defendant Moreno.
2

This Court denied Defendants Siemens’s and Gonzales’s Motion to Dismiss on
October 25, 2013. (Dkt. # 40.) Construing the facts in a light most favorable to
Plaintiffs as the Court is required to do when evaluating the merits of a Motion to
Dismiss, the Court found that Tavin’s threat of force could be said to have ceased
at the time one of Defendants used deadly force because although Tavin’s right
hand was holding a gun at his side, his left hand was facing palm-up in a
submissive gesture. (Id. at 20.) However, the Court cautioned that additional
evidence in a motion for summary judgment may change the Court’s analysis
regarding whether the shooting was justified and as such, whether the officers were
entitled to qualified immunity. (Id. at 24–25.)
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But instead of quickly serving Defendants Reyes and Moreno after the
Court explicitly discussed the consequences of failing to properly serve
Defendants, Plaintiffs delayed almost another month further. On November 1,
2013—over seventeen months after learning about Defendants Reyes’s and
Moreno’s employer on May 8, 2012, and twenty-two months after filing the
original complaint on January 18, 2012—Plaintiffs issued summons for service on
Moreno (Dkt. # 41) and Reyes (Dkt. # 42).
On November 26, 2013, Defendants Reyes and Moreno filed a Motion
to Dismiss for failure to serve process within the time specified by Federal Rule of
Civil Procedure 4(m) that is currently before the Court. (Dkt. # 44.) Plaintiffs
filed a response. (Dkt. # 48.)
DISCUSSION
Federal Rule of Civil Procedure 4(m) provides:
Time Limit for Service. If service of the summons and complaint is
not made upon a defendant within 120 days after the filing of the
complaint, the court, upon motion or on its own initiative after notice
to the plaintiff, shall dismiss the action without prejudice as to that
defendant or direct that service be effected within a specified time;
provided that if the plaintiff shows good cause for the failure, the
court shall extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). Pursuant to Rule 4(m), “when a plaintiff fails to serve a
defendant within the 120-day period, the district court has two choices: It may
either ‘dismiss the action without prejudice . . . or direct that service be effected

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within a specified time.’” Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996)
(quoting Fed. R. Civ. P. 4(m)). “The next portion of the rule qualifies the district
court’s choices, making an extension of time mandatory when the plaintiff shows
good cause.” Id. Thus, when a district court considers the consequences regarding
a plaintiff’s lack of service within the requisite 120-day timeframe, “it must first
determine whether good cause exists: if good cause is present, the district court
must extend time for service; 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.” Id.
I.

Good Cause
“When service of process is challenged, the serving party bears the

burden of proving . . . good cause for failure to effect timely service.” Thrasher v.
City of Amarillo, 709 F.3d 509, 511 (5th Cir. 2013) (quoting Sys. Signs Supplies
v. U.S. Dep’t of Justice, Wash., D.C., 903 F.2d 1011, 1013 (5th Cir. 1990) (per
curiam)). Proof of good cause requires “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 does not suffice.” Additionally, some “showing of
good faith on the part of the party seeking an enlargement and some reasonable
basis for noncompliance within the time specified is normally required.” Id.

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To support their claim of good cause, Plaintiffs argue that “[w]aivers
for service were mistakenly sent to Defendants Reyes and Moreno at the Boerne
Police Department rather than to the correct San Antonio Police Department
because Plaintiffs did not have any substantiating proof that indicated Defendants
worked for any particular department.” (Dkt. # 48 at 2.)
However, pursuant to Fifth Circuit law, Plaintiffs’ argument cannot
satisfy the good-cause requirement under Rule 4(m) to extend time for service. At
best, Plaintiffs’ error in verifying Defendants’ employer amounts to inadvertence
or mistake of counsel, both of which fail to meet the excusable neglect threshold.
See Thrasher, 709 F.3d at 511; see also Newby v. Enron Corp., 284 F. App’x 146,
149–50 (5th Cir. 2008) (rejecting the plaintiffs’ claims that they had good cause for
delay because they were unaware of defects in service and holding this amounted
to inadvertence, mistake of counsel, and unfamiliarity with rules, all matters that
fall short of the excusable neglect threshold).
In any case, Plaintiffs were notified that the San Antonio Police
Department was the correct employer of Defendants Reyes and Moreno on May 8,
2012—over seventeen months before Plaintiffs properly served Defendants.
Plaintiffs’ excuse may have satisfied the good-cause standard back in May 2012,
but it falls short seventeen months later. There is “no reasonable basis” for this

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extensive delay. Thrasher, 709 F.3d at 511. Plaintiffs have not satisfied Rule
4(m)’s good cause exception for delaying service.
II.

The Court’s Inherent Discretion
Nevertheless, even when good cause is lacking, the Court must decide

whether to exercise its discretion to extend time for service. The 1993 Advisory
Committee Note to Rule 4(m) states that the district court may consider whether
the “applicable statute of limitations would bar the refiled action.” Fed. R. Civ. P.
4(m) advisory committee’s note.
As a preliminary matter, the Court notes that if it were to grant
Defendants’ Motion, Plaintiffs’ action would be barred by Texas’s two-year
statute-of-limitations period for § 1983 claims. See Rodriguez v. Holmes, 963
F.2d 799, 803 (5th Cir. 1992) (holding that because there is no federal statute of
limitations for § 1983 claims, federal courts adopt their forum state’s limitations
period); Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (providing a two-year statute
of limitations for personal injury actions). The limitations period begins to run
“the moment the plaintiff becomes aware that he has suffered an injury or has
sufficient information to know that he has been injured.” Rodriguez, 963 F.2d at
803. The limitations period in this case commenced when Tavin was shot on
December 2, 2010 and expired two years later on December 2, 2012. Therefore,
because the statute of limitations has run on Plaintiffs’ claims, any dismissal of

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claims must be considered a dismissal with prejudice. See Millan v. USAA
General Indem. Co., 546 F.3d 321, 326 (5th Cir. 2008).
When the relevant statute of limitations bars a re-filed action and
renders the dismissal in effect “with prejudice,” this Court’s discretion is more
limited, and the Court must apply a “heightened standard.” Thrasher, 709 F.3d at
512–13 (“If the applicable statute of limitations likely bars future litigation, a
district court’s dismissal of claims under Rule 4(m) should be reviewed under the
same heightened standard used to review a dismissal with prejudice.”); Millan, 546
F.3d at 326 (same).
The heightened standard encompasses two inquiries. First, was there
“a clear record of delay” or “contumacious conduct” by the plaintiff? Millan, 546
F.3d at 326. If so, the court should consider whether one of three aggravating
factors is present: (1) delay caused by the plaintiff himself and not his attorney; (2)
actual prejudice to the defendant; or (3) delay caused by intentional conduct. Id.
Second, would a lesser sanction (other than dismissal) better serve the interests of
justice?
A.

Clear Record of Delay or Contumacious Conduct
To warrant dismissal, a “clear delay” must last “longer than just a few

months; instead, the delay must be characterized by significant periods of total
inactivity.” Thrasher, 709 F.3d at 513. In Thrasher, the Fifth Circuit found “clear

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delay” sufficient to warrant dismissal even after the applicable statute of
limitations had run. There, the plaintiff filed his complaint on February 8, 2010.
Id. at 510. On June 10, 2010—two days after the expiration of the 120-day period
to service process—the district court ordered the plaintiff to show cause by June
21, 2010 why his case should not be dismissed for failure to timely serve the
defendants. Id. Three days before the court-ordered deadline to respond to the
order to show cause, the plaintiff requested an extension. Id. On June 22, 2010,
the court granted the plaintiff’s extension until July 1, 2010 to perfect service of
process. Id. The plaintiff missed this deadline. Id. Eight days after the extended
deadline passed, on July 9, 2010, the defendants filed a motion to dismiss. Id. The
plaintiff did not respond to this motion for almost six months and did not perfect
service until November 29, 2010 for one defendant and December 13, 2010 for the
other—nearly five months after his motion to extend time for obtaining service and
ten months after filing the complaint. Id. The district court dismissed the
plaintiff’s suit given the extensive delay. Id.
On appeal, the Fifth Circuit applied the “heightened standard” because
the statute of limitations would have barred refiling another complaint. Id. at 512–
13. The court held that even reviewing the claim under the heightened standard,
“the record indicates clear delay.” Id. at 513. The court recognized that the
plaintiff delayed ten months before perfecting service on the defendants and that

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during this time, there were prolonged periods of inactivity, and thus, dismissal
with prejudice was warranted. Id.
In the instant case, the record readily reveals that Plaintiffs did not
perfect service for nearly two years after filing the original complaint. (Compare
Dkt. # 1 (filing original complaint on January 18, 2012), with Dkt. ## 42, 43
(issuing summons to Defendants Moreno and Reyes on November 1, 2013).) In
Thrasher, the Fifth Circuit held that a period of ten months from the date of filing
the original complaint to effecting service constituted “clear delay.” 709 F.3d at
513. In this case, Plaintiffs’ delay of twenty-two months is twice that of the delay
in Thrasher and thus plainly evidences “clear delay.”
The Court is sympathetic to Plaintiffs’ excuse that they did not know
the proper employers of the officers involved in Tavin’s shooting. However, once
Plaintiffs learned that Defendants Reyes’s and Moreno’s employer was the City of
San Antonio Police Department on May 8, 2012, they waited an additional
seventeen months before perfecting service. (Compare Dkt. # 5 ¶ 2 (Defendants
Gonzales and Siemens notifying Plaintiffs that Defendants Reyes and Moreno
were San Antonio Police Officers—not affiliated with the City of Boerne), with
Dkt. ## 42, 43 (issuing summons to Defendants Reyes and Moreno on November
1, 2013).) Plaintiffs even waited approximately ten months from filing an
Amended Complaint listing the proper employer of Defendants Reyes and Moreno

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to effecting service. (Compare Dkt. # 12 (motion to amend complaint with the
Defendants’ correct names and employers on December 17, 2012), with Dkt.
## 42, 43 (issuing summons to Defendants Moreno and Reyes on November 1,
2013).) And even when the Court specifically questioned Plaintiffs’ counsel at the
hearing on Defendants’ Gonzales’ and Siemens’ Motion to Dismiss regarding the
whereabouts of Defendants Reyes and Moreno and the consequences of failing to
serve Defendants Reyes and Moreno, Plaintiffs still delayed almost a month
further. Plaintiffs’ delay undoubtedly constitutes “clear delay.” See, e.g.,
Thrasher, 709 F.3d at 513 (holding that a failure to perfect service on the
defendants for nearly ten months after filing complaint indicates clear delay);
Gartin v. Par Pharm. Cos., Inc., 289 F. App’x 688, 694 (5th Cir. 2008) (a delay of
seven months in serving one of the defendants is a clear record of delay); Sealed
Appellant v. Sealed Appellee, 452 F.3d 415, 419 (5th Cir. 2006) (holding that
missing the 120-day deadline by almost 600 days (twenty months) was a clear
record of delay and not a simple inadvertence).
B.

Aggravating Factors
A clear record of delay, however, is not the only consideration. When

courts dismiss cases with prejudice, they generally find at least one of three
aggravating factors: (1) delay caused by the plaintiff himself and not his attorney;

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(2) delay caused by intentional conduct; or (3) actual prejudice to the defendant.
See Millan, 546 F.3d at 326.
The record in this case does not contain any of the three aggravating
factors listed above. First, arguably the delay in this case resulted from the actions
of Plaintiffs’ counsel—not Plaintiffs themselves. As outlined above, Plaintiffs’
counsel has delayed to serve Defendants Reyes and Moreno for nearly two years
after filing Plaintiffs’ Complaint, seventeen months after learning of Defendants’
proper employer, ten months after filing an amended complaint naming their
proper employer, and a month after the Court specifically warned Plaintiffs’
counsel about the failure to effect service.
Second, although Plaintiffs’ counsel has caused delay, there is no
record that Plaintiffs’ counsel is intentionally engaging in delay. The Court is
aware of Plaintiffs’ counsel’s back and knee injuries, which have apparently
required daily physical therapy. (Dkt. # 7 ¶ 3.) The Court is also aware of
Plaintiffs’ counsel’s “various matters, including many disputes, which have taken
up numerous hours.” (Id.) But these explanations cannot excuse his serious
disregard for the Local Rules for the Western District of Texas and this Court’s
deadlines. Aside from the aforementioned delay in service of process, Plaintiffs’
counsel has a habitual practice of delay in general:
1.

Plaintiffs’ counsel failed to timely respond to Defendants
Siemens and Gonzales’s Motion to Dismiss filed on May 8,
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2012 (Dkt. # 5). Pursuant to Local Rule 7(e), Plaintiffs were
required to respond within fourteen days. Instead, Plaintiffs’
counsel took no action for 170 days. Finally, the Court, in the
interests of justice, issued an Order to Show Cause directing
Plaintiffs to respond to Defendants’ Motion to Dismiss by
November 7, 2012. (Dkt. # 6.) Despite the Court giving
Plaintiffs another chance to respond, Plaintiffs’ counsel
requested another extension of time (until December 17, 2012),
which the Court granted.
2.

Despite the fact that Tavin was shot on December 2, 2010—
three years ago—Plaintiffs’ counsel has failed to conduct
discovery by the court-ordered deadline of September 6, 2013.
At the hearing for the instant motion to dismiss, Defendants’
counsel averred that no discovery in this case has taken place to
date.

3.

Plaintiffs’ counsel did not timely respond even to the instant
Motion to Dismiss. Defendants filed their Motion on
November 26, 2013. (Dkt. # 44.) Plaintiffs’ counsel requested
an extension of time to respond. (Dkt. # 45.) The Court
granted Plaintiffs’ Motion and stated, “Plaintiffs’ response to
Defendants’ Motion to Dismiss is due January 9, 2014.” On
January 10, 2014, a day after the extended deadline had
expired, Plaintiffs’ counsel again asked for another extension
(Dkt. # 47), which the Court granted.

Although the Court finds that Plaintiffs’ counsel has not intentionally delayed
serving Defendants, nor has he intentionally delayed prosecuting this case, the
Court emphasizes that Plaintiffs’ counsel’s current practices, which have
culminated in a lengthy delay, are unacceptable.
Third, although there has been a clear record of delay, the current
record before the Court does not reveal that Defendants have suffered actual
prejudice. In fact, at the hearing, Defendants’ counsel admitted that Defendants
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Reyes and Moreno have not discovered any evidence to suggest that they have
suffered actual prejudice.
C.

Lesser Sanctions
Thus, the lack of any aggravating factors warrants imposing a lesser

sanction than dismissal. See Tello v. Comm’r, 410 F.3d 743, 744 (5th Cir. 2005)
(holding that the Fifth Circuit generally only affirms dismissals with prejudice if
one of the three aggravating factors is present). Because dismissal with prejudice
is an “extreme sanction that deprives a litigant of the opportunity to pursue his
claim,” a district court should consider whether a lesser sanction would “better
serve the interests of justice” before dismissing a case with prejudice. Millan, 546
F.3d at 326 (emphasis added); Berry v. CIGNA, 975 F.2d 1188, 1191 (5th Cir.
1992) (holding that the Fifth Circuit affirms dismissals with prejudice only when
“(1) there is a clear record of delay or contumacious conduct by the plaintiff, and
(2) the district court has expressly determined that lesser sanctions would not
prompt diligent prosecution, or the record shows that the district court employed
lesser sanctions that proved to be futile”). Lesser sanctions include: “assessments
of fines, costs, or damages against the plaintiff, . . . conditional dismissal, dismissal
without prejudice, and explicit warnings. Thrasher, 709 F.3d at 514 (quoting
Rogers v. Kroger Co., 669 F.2d 317, 321–22 (5th Cir. 1982)).

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Here, lesser sanctions would better serve the interests of justice. This
case involves the shooting death of Plaintiffs’ son. Dismissing Plaintiffs’ claims
against Defendants Reyes and Moreno solely because of their counsel’s neglect in
serving Defendants is unreasonably harsh, especially since Defendants’ counsel
honestly acknowledged that he is currently unaware of any evidence suggesting
Defendants have suffered actual prejudice. However, this order serves as an
explicit warning to Plaintiffs’ counsel that the Court will not tolerate further delay
in prosecuting this case.
CONCLUSION
Given Defendants’ counsel’s candid admission, which this Court
appreciates, the Court DENIES Defendants’ Motion to Dismiss WITHOUT
PREJUDICE (Dkt. # 44). If, during discovery, Defendants Reyes and Moreno
discover any evidence that suggests Defendants have suffered actual prejudice
because of Plaintiffs’ delay in service of process, the Court will consider another
motion to dismiss.
IT IS SO ORDERED.
DATED: San Antonio, Texas, February 10, 2014.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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