Rich v. Winder et al
Filing
16
MEMORANDUM DECISION and ORDER denying 12 Motion to Dismiss. Signed by Judge Ted Stewart on 6/15/2015. (blh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JORDAN D. RICH,
MEMORANDUM DECISION AND
ORDER DENYING DEFENDANTS’
MOTION TO DISMISS
Plaintiff,
v.
JAMES M. WINDER, FNU HARRIS,
SESLIE K. SISNEROS, CHRISTOPHER
B. BERGER, DOES 1-5, and SALT LAKE
COUNTY
Case No. 2:14-CV-469 TS
Judge Ted Stewart
Defendants.
This matter is before the Court on a Motion to Dismiss for Insufficient Service of Process
pursuant to Federal Rules of Civil Procedure 12(b)(5), 4(m), and 4(e), filed by Defendants
Harris, Sisneros, and Berger. For reasons set forth below, the Court will deny Defendants’
Motion.
I. BACKGROUND
Plaintiff Jordan D. Rich (“Plaintiff”), proceeding pro se and in forma pauperis, filed this
action against Defendants James M. Winder, Seslie K. Sisneros, Christopher B. Berger, FNU
Harris, and Salt Lake County (“Defendants”) in this Court. On July 5, 2014, Plaintiff sent
Defendants a Notice of Lawsuit and Request to Waive Service of Process. Defendants did not
provide Plaintiff with a waiver within the prescribed time period.
Thereafter, Plaintiff postponed filing a Motion for Service of Process until after he had
completed his last semester of his undergraduate studies at the University of Utah. During this
postponement period, Defendant Winder was re-elected as a Salt Lake County Sheriff. On or
about January 14, 2015, approximately 197 days after the action was originally filed, Plaintiff
1
filed a Motion for Service of Process. On February 17, 2015, the Court dismissed Defendant
Salt Lake County without prejudice from the action and ordered service be executed by the
United States Marshal Service on the remaining Defendants at the address of the Salt Lake
County Sherriff’s Department. The United States Marshal Service, in accordance with this
Court’s instruction, executed service on March 16, 2015. The United States Marshal Service did
so by delivering a copy of the summons and complaint to the Salt lake County Clerk’s Office.
Subsequently, Defendants Harris, Sisneros, and Berger filed this Motion.
II. DISCUSSION
Defendants argue that Plaintiff did not attempt service of process until January 14, 2015.
Thus, Defendants argue, Plaintiff failed to serve a copy of the summons and Complaint within
the required 120 days after the Complaint was filed. 1 Further, Defendants argue that Plaintiff
violated Rule 4(e) because the United State Marshal Service delivered Defendants’ copies of the
summons and Complaint to the Salt Lake County Clerk’s Office when none of the Defendants
had appointed the Salt Lake County Clerk to be their agent authorized to receive service of
process. 2
In opposition, Plaintiff argues that, despite his failure to execute service within 120 days,
the Court still chose to issue its Order Granting Motion for Service of Process, which the Court
had authority to do under Rule 4(m). 3 Plaintiff further argues that the Court failed to give notice
to the Plaintiff of a pending dismissal of the action for failure to timely effect service pursuant to
Rule 4(m) and, if the Court had given notice, Plaintiff would have shown good cause. 4 Plaintiff
1
Docket No. 12, at 2.
2
Id.
3
Docket No. 14, at 3–4.
4
Id. at 4.
2
also asserts that his postponement of service benefited all parties involved and, thus, the
postponement constitutes sufficient good cause. 5 Finally, Plaintiff asserts that he, acting in
forma papueris, relied on the Court to execute service and should not be punished for the
incorrect service executed by the United States Marshal Service. 6
Federal Rule of Civil Procedure 4(m) provides that Plaintiff must serve Defendants with
the summons and the Complaint within 120 days after filing the Complaint. 7 “If a defendant is
not served within 120 days after the complaint is filed,” the Court must either “dismiss the action
without prejudice . . . or order that service be made within a specified time.” 8 However, “if the
plaintiff shows good cause for the failure, the court must extend the time for service for an
appropriate period.” 9 Because an extension of time is mandatory when good cause is shown,
“[t]he preliminary inquiry made under Rule 4(m) is whether the plaintiff has shown good cause
for the failure to effect timely service.” 10
In order for a plaintiff to show good cause he “must show meticulous efforts to comply
with the rule.” 11 This means that a plaintiff’s inadvertence, negligence, or ignorance of the rules
will not constitute good cause for failure to effect timely service. 12
5
Id.
6
Id. at 5–6.
7
Fed. R. Civ. P. 4(m).
8
Id.
9
Id.
10
Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995).
11
In re Kirkland, 86 F.3d 172, 176 (10th Cir. 1996) (citing Despain v. Salt Lake Area
Metro Gang Unit, 13 F.3d 1436, 1438 (10th Cir. 1994)).
12
See Murphy v. City of Tulsa, 556 F. App’x 664, 668 (10th Cir. 2014) (citing Kirkland,
86 F.3d at 176); Despain, 13 F.3d at 1439.
3
In this case, Plaintiff argues that his postponement of service constitutes good cause
because he delayed service in order to both complete the last semester of his undergraduate
degree and allow Defendant Winder to enter the general elections unencumbered by pending
litigation. 13 Plaintiff, however, has not shown meticulous efforts to comply with the rules. To
the contrary, Plaintiff intentionally chose to postpone service, despite the rules, until a time that
more conveniently aligned with Plaintiff’s own schedule. Because there is no indication that
Plaintiff attempted to follow the applicable rule, he has failed to show sufficient good cause
warranting a mandatory extension of time.
However, Plaintiff’s “failure to show good cause for a mandatory extension of time does
not end the inquiry.” 14 “If the plaintiff fails to show good cause, the district court must still
consider whether a permissive extension of time may be warranted.” 15 At such time, the Court
may use its discretion to either dismiss the case without prejudice or grant a permissive
extension. 16 In making its determination, the Court considers several guiding factors. 17 Most
importantly, this Court must consider the fact that Plaintiff is proceeding pro se and in forma
pauperis and, thus, requires the protection of the Court from possible consequences of confusion
or delay that may result from Plaintiff’s petition. 18
Here, Plaintiff did bring this action pro se and in forma pauperis and the Court must take
care to protect him from the consequences of confusion or delay. Plaintiff asserts that he
believed he was saving the Court time by postponing service, which he believed would avoid
13
Docket No. 14, at 5.
14
Espinoza, 52 F.3d at 841.
15
Id.
16
Id.
17
Id. at 842.
18
Id. & n.8.
4
both unnecessary requests for leave and arguments of inopportune timing. 19 In addition, Plaintiff
had requested a waiver of service from Defendants to which they apparently did not respond.
Therefore, Plaintiff’s failure to effect timely service likely was a result of his lack of legal
knowledge and training and, therefore, this Court will grant a permissive extension.
Rule 4(e)(2) provides that Plaintiff may effect service by:
(A) delivering a copy of the summons and of the complaint to the individual
personally; (B) leaving a copy of each at the individual’s dwelling or usual place
of abode with someone of suitable age and discretion who resides there; (C) or
delivering a copy of each to an agent authorized by appointment or by law to
receive service of process. 20
Generally, when a plaintiff desires to effect service on an agent of the defendant, the defendant
must actually appoint the agent as an authorized receiver of service. 21
In this case, Defendants argue that Plaintiff’s attempt at service was incorrect because the
summons and Complaint were delivered to an unauthorized agent, the Salt Lake County Clerk,
rather than personally served upon each Defendant individually. Because Plaintiff is proceeding
pro se and in forma pauperis, he may rely on the United States Marshal Service to effect service
of process on his behalf. 22 Here, Plaintiff was not responsible for executing service on
Defendant. Rather, the United States Marshal Service performed service in accordance with the
Court’s instructions. The Court ordered service on each Defendant at the Salt Lake County
Sheriff Department, where they are presumably employed, in order to effectuate service.
Instead, the summons and Complaint were provided to the Salt Lake County Clerk. The Tenth
19
Docket No. 14, at 5.
20
Fed. R. Civ. P. 4(e)(2).
21
4A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE, § 1097 (3d ed. 2006) (“[A]ctual appointment for the specific purpose of
receiving process normally is expected.”).
22
See 28 U.S.C. § 1915(d).
5
Circuit has held a plaintiff should not be punished for the mistake of the Court or the Marshal. 23
Because this error in service is not attributable to Plaintiff, the Court will deny Defendants’
Motion to Dismiss for failure to effect service pursuant to Rule 4(e).
III. CONCLUSION
It is therefore
ORDERED that Defendants’ Motion to Dismiss (Docket No. 12) is DENIED.
DATED June 15, 2015.
BY THE COURT:
________________________________________
TED STEWART
United States District Judge
23
See Olsen v. Mapes, 333 F.3d 1199, 1204 (10th Cir. 2003) (“Thus, the responsibility
for the failure to serve Defendant . . . rests with the Marshal or with the district court, not
with Plaintiffs.”)
6
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