Cobb v. GC Services, LP

Filing 58

MEMORANDUM OPINION AND ORDER denying 45 MOTION by Kathorine Cobb to Amend Complaint Attached to 1 Notice of Removal; denying as moot 57 MOTION by U.S. Department of Education for Leave to Reply to the Plaintiff's Response to Order to Show Cause; granting 46 MOTION by U.S. Department of Education to Dismiss 31 First Amended Complaint for Insufficiency of Service; dismissing the case without prejudice. Signed by Judge Robert C. Chambers on 5/24/2017. (cc: attys; any unrepresented parties) (mkw)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
KATHORINE COBB,
Plaintiff,
v.

CIVIL ACTION NO. 3:16-3764

U.S. DEPARTMENT OF EDUCATION,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant’s Motion to Dismiss First Amended Complaint for
Insufficiency of Service, ECF No. 46, and Plaintiff’s Motion to Amend Complaint, ECF No. 45.
Also pending is Defendant’s Motion for Leave to Reply to the Plaintiff’s Response to Order to
Show Cause. ECF No. 57. For the reasons stated herein the Motion to Dismiss is GRANTED, the
Motion to Amend is DENIED, and the Motion for Leave to Reply is DENIED as moot.
In a Memorandum Opinion and Order dated May 8, 2017, this Court ordered Plaintiff
Kathorine Cobb to show cause why she did not serve the Department of Education (“DoE”) within
90 days as required by Rule 4(m) of the Federal Rules of Civil Procedure. Her response is either
intentionally misleading or innocently obtuse. Whatever the motivation, it makes no difference to
her nonsensical excuse.
Cobb maintains that she cannot remedy service to DoE until the Court rules on her motion
to amend her complaint to add Secretary of Education Betsy DeVos. Cobb apparently believes that
joining Secretary DeVos will remedy her service issues and ensure that she complies with Rule
4(i)(2). Cobb’s response completely misses the mark. The Court is, at this moment and for the

purposes of this Order and its previous Order, unconcerned with Cobb’s attempt to join Secretary
DeVos. The Court ordered Cobb to show cause why she did not serve DoE within 90 days. Cobb
does not need to join Secretary DeVos to effect proper service on DoE. Cobb joined the DoE some
time ago and could have requested additional summonses at any time after she joined DoE to the
case. Cobb’s attempt to join and serve Secretary DeVos in her official capacity is duplicative and
unnecessary where it has already joined DoE.
It would appear that the only reason for Cobb’s untimely attempts at service on DoE is a
fundamental misinterpretation of the Federal Rules of Civil Procedure, generally and Rule 4,
specifically. Ignorance of the requirements of Rule 4 is not good cause. Townsel v. Cty. of Contra
Costa, 820 F.2d 319, 320 (9th Cir. 1987).
Moreover, Cobb’s Motion to Amend her Complaint to join Secretary DeVos, as already
explained, is duplicative and unnecessary. There is nothing in her motion to explain why she needs
to join Secretary DeVos after she already joined DoE. Permitting joinder of Secretary DeVos
would exchange defendants in name only. Yet, Cobb had ample opportunity to properly serve DoE
but failed to do so.
Accordingly, Cobb’s Motion to Amend her Complaint is DENIED. ECF No. 45. DoE’s
Motion for Leave to Reply to Plaintiff’s Response is DENIED as moot. ECF No. 57. Finally,
DoE’s Motion to Dismiss is GRANTED and the case is DISMISSED without prejudice. ECF No.
46.

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The Court DIRECTS the Clerk to send a copy of this Opinion and Order to counsel of
record and any unrepresented parties.

ENTER:

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May 24, 2017