Dean v. Alderman et al

Filing 31

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 24 Report and Recommendation of Magistrate Judge: Granting 9 Motion to Dismiss; Adopting 24 Report and Recommendation. Civil Action is Dismissed Without Prejudice and Stricken from active docket of this Court. Clerk is directed to enter judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 8/16/13. (soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARY DEAN,
Plaintiff,
v.

Civil Action No. 5:13CV19
(STAMP)

BRANDY ALDERMAN, individually
and in her capacity as agent
and employee of City of Wheeling,
WILL WARD, individually and in
his capacity as agent and
employee of City of Wheeling
and THE CITY OF WHEELING, a West
Virginia municipal corporation,
Defendants.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Background

On December 16, 2010, the then pro se1 plaintiff filed a civil
rights complaint against these defendants in the Circuit Court of
Ohio County, West Virginia.

The complaint alleges that defendants

Brandy Alderman (“Alderman”) and Will Ward (“Ward”) responded to a
domestic dispute between the plaintiff and David Law on December
16, 2008, and that, in the course of responding to this incident,
effectuated a warrantless search of her home and arrested her
without probable cause, using excessive force during the course of
events. She asserts a number of constitutional violations, as well
as state law causes of action against defendants Alderman and Ward,

1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1341 (9th ed. 2009).

and against the City of Wheeling for negligently hiring and
retaining the officers.
Although

the

complaint

was

filed

in

December

2010,

the

plaintiff did not serve the defendants with a copy of the summons
and complaint until early 2013, more than two years after the
complaint was filed.

After the defendants were served, they

removed this civil action to this Court on the basis of federal
question jurisdiction under 28 U.S.C. § 1331.

The defendants then

filed a motion to dismiss which argued, among other things, that
the complaint should be dismissed because they were not timely
served with the complaint and summons.
Pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C. § 636, this
Court referred the plaintiff’s complaint to the Honorable James E.
Seibert,

United

recommendation.

States

Magistrate

Judge,

for

report

and

Shortly thereafter, attorney Richard A. Robb

entered his appearance on behalf of the plaintiff, and the parties
fully briefed the defendants’ motion to dismiss.

Magistrate Judge

Seibert then entered a report and recommendation, recommending that
this Court grant the defendants’ motion to dismiss, and dismiss the
plaintiff’s complaint without prejudice for failure to timely serve
the defendants. The magistrate judge informed the parties that any
party wishing to object to the report and recommendation could file
written objections within fourteen days of being served with the
report and recommendation.

The plaintiff filed timely objections,

2

and also filed untimely supplemental objections.2

This Court

directed the defendants to respond to the objections, as they
raised issues and arguments not previously raised before the
magistrate judge.

The defendants responded to the objections, and

the plaintiff filed a second supplement to her objections. For the
reasons

that

follow,

this

Court

must

affirm

and

adopt

the

recommendations of the magistrate judge, overrule the plaintiff’s
objections,

and

dismiss

the

plaintiff’s

complaint

without

prejudice.
II.

Applicable Law

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a

de

novo

review

of

any

portion

of

the

magistrate

recommendation to which objection is timely made.

judge’s

Because the

plaintiff filed objections to the report and recommendation, the
magistrate judge’s recommendation will be reviewed de novo.
III.

Discussion

The defendants move to dismiss under Federal Rule of Civil
Procedure 12(b)(5), which allows a party to move for dismissal for
insufficient

service

of

process.3

The

defendants

argue

that

2

Although this Court notes that the plaintiff’s supplemental
objections were untimely, in the interest of determining the proper
outcome of the defendants’ motion to dismiss, the supplemental
objections have been considered.
3

The defendants also move to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6), and offer a number of bases for
dismissal.
However, the magistrate judge only considered the
timeliness of service, and as this Court agrees with the magistrate
judge that dismissal is appropriate as a result of untimeliness of
service, this Court will also only consider this basis for
3

service was insufficient in this case because the plaintiff failed
to serve them with the complaint and summons in this case within
120 days after the complaint was filed, as is required by West
Virginia Rule of Civil Procedure 4(k).

See Wolfe v. Green, 66 F.

Supp. 2d 738, 745-46 (S.D. W. Va. 2009) (When service occurs prior
to removal, state law controls the question of whether service was
proper.).

The plaintiff does not contest the fact that she failed

to properly serve the defendants within the 120 day time limitation
required by Rule 4(k), but rather argues that this failure should
not result in dismissal of her complaint because she had “good
cause” for failing to meet this deadline.
4(k).

See W. Va. R. Civ. P.

Accordingly, she asserts, this Court must extend the time

for service appropriately to allow her case to move forward based
upon service in early 2013.
The plaintiff argues that she had retained counsel in order to
file

this

civil

action

a

few

months

following

the

relevant

incidents in 2008, and that throughout the next year and a half,
her counsel informed the plaintiff that her claims were being
pursued.

However, on the last day prior to the expiration of the

statute of limitations for her claims, the plaintiff’s counsel at
the time informed her that he could no longer represent her.
Counsel indicated that he would draft a pro se complaint for her
and file it in the state court.

He also informed the plaintiff

that she would need to serve the defendants with the complaint and

dismissal.
4

summons within 120 days of filing the complaint.

Counsel then

timely filed the complaint on the final day before the expiration
of the statute of limitations.

The plaintiff argues that, after

her counsel filed the pro se complaint, she did not receive a copy
of the complaint for 60 days, leaving her only 60 days to serve the
defendants.

The plaintiff failed to serve the defendants within

this time period.
The plaintiff then claims that, late in 2012, the plaintiff
filed

a

legal

malpractice

action

against

her

counsel,

and

throughout the process of that case, at some point discovered that
this action had not been dismissed.

After discovering this, she

immediately served the defendants.
Rule 4(k) provides that “[i]f 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 . . .”
exception,

which

allows

However, the rule also provides an
a

court

to

grant

the

plaintiff

an

appropriate extension of the time by which she must serve the
defendants “if the plaintiff shows good cause for the failure.” As
noted by the magistrate judge, the West Virginia Supreme Court of
Appeals has found that, in order to show good cause for a failure
to

timely

serve,

a

plaintiff

must

show

more

than

“mere

inadvertance, neglect, misunderstanding, or ignorance of the rule
or its burden.”

State ex rel. Charleston Area Med. Ctr. v.

5

Kaufman, 475 S.E.2d 374, 380-81 (W. Va. 1996).

In order to

determine whether or not a plaintiff has shown good cause, a court
can consider:
(1) the length of time used to obtain service; (2) the
activities of the plaintiff; (3) the plaintiff’s
knowledge of the defendant’s location; (4) the ease with
which the defendant’s location could have been
ascertained; (5) the actual knowledge by the defendant of
the pendency of the action; and (6) special circumstances
which would affect the plaintiff’s effort.
Id.
The West Virginia Supreme Court of Appeals has also found
that, if the plaintiff fails to show good cause, the court may
exercise its discretion to extend the time of service.

Burkes v.

Fas-Chek Food Mart, Inc., 617 S.E.2d 838, 844-45 (W. Va. 2005). In
determining whether to extend the time for service in the absence
of good cause shown by the plaintiff, courts should consider “(1)
whether the defendant evaded service, (2) whether the defendant
knowingly concealed a defect in service, (3) whether the statute of
limitations has expired, and (4) whether the defendant has been
prejudiced by the failure to serve.”

Id.

The plaintiff’s arguments as to good cause for her failure to
timely serve the defendants do not contend that service was
prevented in any way by the defendants or the plaintiff’s inability
to locate them.

She also does not contend that she was in some way

physically unable to serve them.

Rather, the plaintiff’s entire

claim of good cause revolves around the fact that her counsel
withdrew on the last day for filing this civil action under the

6

statute of limitations, thus leaving her pro se.

Accordingly, as

to the factors for finding good cause delineated in Kaufman, the
plaintiff only evokes the final factor, that special circumstances
affected her effort to serve the defendants.
The magistrate judge rejected this contention.

He noted that

the delay in serving the defendants was significant–nearly 800
days–and placed specific emphasis on the fact that the plaintiff
admits that she was fully aware of the 120 day deadline for service
at all stages both prior to and following the filing of her
complaint in the circuit court.

The magistrate judge also placed

importance on the plaintiff’s admission that, while she did not
receive the complaint immediately after it was filed, she received
it within 60 days remaining on the service deadline.

This, the

magistrate judge found, was more than enough time to serve these
defendants prior to the expiration of the 120 day deadline.
The magistrate judge also recommends that this Court not
utilize its discretion to extend the plaintiff’s deadline.

Again,

the magistrate judge emphasizes the plaintiff’s admitted awareness
of the deadline, and the fact that there is no evidence that the
defendants themselves contributed to the plaintiff’s failure to
effectuate service.

He also notes that the defendants will be

prejudiced by the fact that the plaintiff has sat on her rights for
more than four years.

Accordingly, the magistrate judge contends,

the fact that the statute of limitations has run on the plaintiff’s

7

claims is outweighed by the plaintiff’s failure to comply with a
deadline of which she was entirely aware.
In objection, the plaintiff argues that the magistrate judge’s
report

and

recommendation

overlooks

the

abandonment

of

the

plaintiff by her prior counsel, and does not take into account that
the delay in filing the civil action, as well as in the plaintiff’s
receiving a copy of the complaint, severely limited the plaintiff’s
ability to obtain new counsel prior to the service deadline.

She

also provides argument and an affidavit which suggest that she was
suffering from psychological and emotional difficulties at the time
that service was required to be made. The plaintiff further argues
that the magistrate judge fails to consider the merits or gravity
of

the

plaintiff’s

allegations,

and

that

the

report

and

recommendation finds that the defendants would be prejudiced by the
continuation of this case when the defendants never made such an
argument.
After review of the report and recommendation, the record, and
the filings of the parties, this Court finds that the plaintiff’s
objections are without merit, and the magistrate judge correctly
concluded that the plaintiff’s complaint must be dismissed without
prejudice pursuant to Federal Rule of Civil Procedure 12(b)(5).
This Court recognizes that the plaintiff’s attorney discontinued
his representation of the plaintiff on the final day prior to the
expiration of the statute of limitations, and left the plaintiff,
who never intended to proceed pro se, to protect her rights on her

8

own without the aid of counsel.

This Court also recognizes the

plaintiff’s argument that she has no legal background and may have
been suffering from psychological or emotional distress at the
time.
However, it is equally clear that the plaintiff was fully
aware of the deadline by which she was required to serve the
defendants, and that she received a copy of the complaint within
sufficient time to meet this deadline.

Further, the plaintiff

failed to request an extension from the circuit court at any time
to allow her to obtain counsel or to serve the defendants herself.
This Court also notes that, when the plaintiff finally did serve
the defendants after a nearly two year delay, she had no trouble
serving the defendants as a pro se litigant.
The plaintiff argues that the fact that she did not receive a
copy of the complaint for 60 days after it was filed hindered her
ability to obtain substitute counsel before the service deadline,
but the record also indicates that the plaintiff never obtained
substitute counsel at any time, and no effort was made at any time
to serve the defendants until service was made, nearly two years
late. Accordingly, the plaintiff’s explanation as to her personal
issues, as well as her issues with her attorney, are insufficient
to show special circumstances of the type to create good cause for
a delay this significant.
This Court also finds that it is inappropriate to use its
discretion to allow the plaintiff to serve the defendants so long

9

after the 120 day deadline.

As the magistrate judge found, the

defendants have done nothing to create or add to the delay in
service in this case, and there is no indication that they were
aware of the filing of this civil action prior to the time that
they were served.

Further, while the statute of limitations has

run on the plaintiff’s claims, the defendants will certainly be
unfairly and materially prejudiced if they are required to defend
this civil action nearly five years following the incident in
question.

Over such an extended period of time, memories of

parties and witnesses are likely to fade or become distorted,
evidence may disappear, and the defendants’ ability to defend
themselves is greatly impaired.

The plaintiff should not receive

a windfall as a result of her extensive delay in effectuating
service in this case.
The plaintiff has argued that the defendants have not raised
a sufficient argument as to prejudice, and thus implies that this
Court cannot sua sponte find prejudice as a basis for denying the
plaintiff an extension for service.

This is simply not the case.

Rule 4(k) provides that a court may dismiss a plaintiff’s case for
failure to timely serve a defendant either on motion of the
defendant or on its own motion.

Accordingly, this Court may act

entirely sua sponte in dismissing the plaintiff’s case under this
rule, and there is no burden on the defendants to present cause why
the case should be dismissed for failure to timely serve the
defendant

with

process.

Rather,

10

the

Court

is

charged

with

considering the elements set forth in Burkes, 617 S.E. at 844-45,
and make a determination therefrom.

If a burden on the parties

exists, in fact, it is on the plaintiff to demonstrate that her
case should not be dismissed. It is further necessary to note that
severity

or

the

merits

of

the

plaintiff’s

allegations

are

irrelevant to this inquiry, which focuses solely on issues and
considerations relevant to timely service.

See id.; and Kaufman,

475 S.E.2d at 380-81.
IV.

Conclusion

For the reasons described above, the report and recommendation
of the magistrate judge is AFFIRMED and ADOPTED in its entirety.4
Accordingly, the defendants’ motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(5) is GRANTED.
DISMISSED WITHOUT PREJUDICE.

This civil action is

Accordingly, it is ORDERED that this

case be DISMISSED and STRICKEN from the active docket of this
Court.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this order to
counsel of record herein.

Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.

4

Although there is case law from at least one other circuit,
Cardenas v. City of Chicago, 646 F.3d 1001, 1008 (7th Cir. 2011),
noting that where there would be a statute of limitations bar,
dismissal with prejudice would be appropriate, this Court will
follow the recommendation of the magistrate judge that dismissal be
without prejudice.
11

DATED:

August 16, 2013

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

12