Sheskey, Dennis v. Madison Metropolitan School District
Filing
26
ORDER denying 18 Motion to Dismiss. IT IS FURTHER ORDERED that Sheskey must serve defendant with the complaint and summons in this lawsuit consistent with requirement of Federal Rule of Civil Procedure 4 on or before December 31, 2013. Once service is complete, Sheskey shall file proof promptly with the court. Failure to do so will result in the dismissal of this lawsuit. No further opportunities under Rule 4(m) will be provided. Signed by District Judge William M. Conley on 12/17/2013. (jef/cc: plaintiff with a copy of the dkt. 3 summons),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DENNIS J. SHESKEY,
Plaintiff,
v.
OPINION AND ORDER
12-cv-488-wmc
MADISON METROPOLITAN
SCHOOL DISTRICT,
Defendant.
In this civil action, plaintiff Dennis J. Sheskey, proceeding pro se, alleges that
defendant Madison Metropolitan School District discriminated against him based on age
by restricting certain Madison School and Community Recreation classes to individuals
50 years old or older in violation of the Age Discrimination Act of 1975, 42 U.S.C. §
6101 et seq. 1
Before the court is defendant’s second motion to dismiss because of
insufficiency of service of process pursuant to Fed. R. Civ. P. 12(b)(5). (Dkt. #18.)
Once again, it seems Sheskey has failed to serve the complaint and summons as required
by Fed. R. Civ. P. 4. Still, the court finds that a second extension of the time to serve is
warranted because (1) the statute of limitations would likely bar refiling, (2) defendant
had actual notice of the lawsuit, and (3) plaintiff’s status as a pro se litigant. The court,
therefore, will provide Sheskey one last opportunity to perfect service.
1
While Sheskey complains of age discrimination generally, the court construes his claim
as one arising under federal law.
BACKGROUND
Sheskey filed the present complaint on July 9, 2012. (Dkt. #1.) On July 11,
2012, the court directed plaintiff to serve the complaint and issued a summons. (Dkt.
##2-3.) Sheskey initially, erroneously attempted to serve defendant by certified mail,
but defendant moved to dismiss for improper service of process. The court denied the
motion at that time, while providing Sheskey a deadline to perfect service:
If Mr. Sheskey wishes to continue this lawsuit, he must
serve defendant with the complaint and summons in this
lawsuit consistent with requirement of Federal Rule of
Civil Procedure 4 on or before August 1, 2013. Once
service is complete, Sheskey shall file proof promptly
with the court. Failure to do so will result in the
dismissal of this lawsuit.
(7/22/13 Op. & Order (dkt. #15) 4-5 (emphasis in original).
On or about August 1, 2013, Sheskey’s wife Li-Chuang L. Sheskey attempted
service on the Superintendent of the Madison Metropolitan School District. Li-Chuang
Sheskey left the complaint with Taryn Soza, a bilingual administrative assistant
employed in the public information department of the Madison Metropolitan School
District, located in room 100 of the District’s office located 545 W. Dayton St.,
Madison, WI.
Li-Chuang Sheskey indicated to Soza that she had a letter for the
superintendent and requested a signature to acknowledge receipt, which Soza provided.
Soza then walked the envelope to the Superintendent’s office and handed it to Judith
Castro-Romaker, executive assistance to the Superintendent.
Castro-Romaker opened
the envelope, reviewed its contents and forwarded the documents to the District’s Office
of Legal Services. The enclosed documents contained the summons for this action and
2
the first and last page of the complaint, with the second page containing the factual
allegations missing.
OPINION
Federal Rule of Civil Procedure Rule 4(j) describes the requirements for service of
process on a local governmental entity:
(2) State or Local Government.
A state, a municipal
corporation, or any other state-created governmental
organization that is subject to suit must be served by:
(A) delivering a copy of the summons and of the complaint to
its chief executive officer; or
(B) serving a copy of each in the manner prescribed by that
state’s law for serving a summons or like process on such
defendant.
Fed. R. Civ. P. 4(j)(2). As contemplated by Rule 4, a plaintiff may also look to state law
for proper service of process:
(4) Other political corporations or body politic. (a) Upon
a political corporation or other body politic, by personally
serving any of the specified officer, directors, or agents:
...
6. If against a school district or school board, the president or
clerk thereof[.]
...
(b) In lieu of delivering the copy of the summons to the
person specified, the copy may be left in the office of such
officers, director, or management agent with the person who
is apparently in charge of the office.
Wis. Stat. § 801.11(4).
3
Even if Soza was “apparently in charge of the office,” and even if the office was
the office of the Superintendent (rather than the office of the public information
department), there is no dispute that Sheskey attempted to serve the District’s
Superintendent, rather than its President or Clerk.
A simple search of the Madison
Metropolitan School District’s website reveals that Ed Hughes is the President of the
School Board and Mary Burke is the Clerk, neither of whom are the Superintendent.
Madison
Metropolitan
School
District,
Board
of
Education,
https://boeweb.madison.k12.wi.us/ (last visited Dec. 17, 2013).
Perhaps the Superintendent would constitute the “chief executive officer” as
contemplated by Rule 4(j)(2)(a), but this subsection of Rule 4 (somewhat anomalously)
requires personal service, as compared to service on an individual under Rule 4(e), which
also allows for service by “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.”
See
Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d 932, 933 (7th Cir. 2002) (“Rule 4
provides two methods for serving a state or local government organization: delivering a
copy of the complaint and summons to the organization’s chief executive officer, or
serving the complaint and summons in the manner prescribed by state law for serving
such an organization.”). 2
2
For reasons which are not entirely clear, service on a state or local government chief
executive under Rule 4(j)(2)(A) is more restrictive than service on an individual.
Perhaps, it is in recognition of the uncertainties of service on public entities with both
political and administrative branches and multiple officers; a matter of deference, comity,
or added protection for state and local entities before hauling them into federal court; or
simply an oversight. Still, the absence of any other alternative for accomplishing service
under Rule 4(j)(2)(A) is stark by comparison to the rest of Rule 4. Moreover, court’s
4
Here, the summons and complaint were not delivered personally to the
superintendent, but rather left with a person in the office next to her office. Moreover,
as set forth above, Sheskey’s service appears incomplete and haphazard at best.
Sheskey’s second attempt at service, therefore, fails to meet the requirements of Rule 4.
As the court described in its previous opinion, the fact that plaintiff’s attempts to
date failed does not mean that dismissal pursuant to Fed. R. Civ. P. 12(b)(5) is
necessarily warranted. Federal Rule of Civil Procedure 4(m) governs the time limit in
which service must occur and the possible consequences of failing to do so, and provides
in pertinent 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 be made
within a specified time. But if the plaintiff shows good cause
for the failure, the court must extend the time for service for
an appropriate period.
While the court found good cause for Sheskey’s first failed attempt at service, Sheskey
has failed to provide good cause for his second failure. Even if his wife’s belief that
Tonya Soza was “apparently in charge of the office” was reasonable, attempted service by
leaving an incomplete copy of the complaint with someone at one of the school district’s
appear to have consistently required actual, personal service on the chief executive officer
of state and local entities. See 1 James Wm. Moore, Moore’s Fed. Practice § 4.58[1] (3d ed.
2013) (collecting cases). Of course, this constraint is relieved under Rule 4(j)(2)(B),
which allows for service under Wisconsin law by leaving a copy of the summons “with
the person who is apparently in charge of the office.” Wis. Stat. § 801.11(4). In this
case, that would have been the office of the “President or Clerk” of the school district.
5
offices for the Superintendent, rather than at the office of its President or Clerk as
required by state statute, was not.
Even absent a showing of good cause, it is still within the court’s discretion to
extend the deadline. See Henderson v. United States, 517 U.S. 654, 662-63 n.10 (1996).
In determining whether to extend the deadline, the court is to consider:
(1) whether the expiration of a statute of limitations during
the pending action would prevent refiling, (2) whether the
defendant evaded service, (3) whether the defendant’s ability
to defend would be prejudiced by an extension, (4) whether
the defendant had actual notice of the lawsuit, and (5)
whether the defendant was eventually served.
Cardenas v. City of Chi., 646 F.3d 1001, 1006 (7th Cir. 2011).
Although a much closer question the second time around, these factors weigh
somewhat in favor of providing Sheskey with one last opportunity to perfect service.
While the School District still refuses to waive service of process -- which is its
prerogative -- there is no indication that defendant has attempted to evade service. Even
so, defendant has had actual notice of the lawsuit as evidenced by defendant’s
appearance and its filing of three motions to dismiss.
Moreover, and perhaps most
critically, the statute of limitations may bar Sheskey from refiling. Under the ADEA, a
civil action must be brought “within 90 days after the date of the receipt of such notice.”
29 U.S.C.A. § 626.
Sheskey attached a portion of a letter from the United States
Department of Education, Office for Civil Rights in response to defendant’s first motion
to dismiss. (Pl.’s Opp’n to 1st Mot. to Dismiss, Ex. 1 (dkt. #9-1).) This letter is dated
May 29, 2012, and it appears to provide notice to Sheskey of his right to sue, starting
the 90-day clock under the ADEA (though it is not entirely clear given the missing page
6
or pages). Finally, there is the court’s own practice of showing some leniency to pro se
litigants, at least on close calls.
Accordingly, Sheskey may have one last opportunity to perfect service. Still, even
pro se plaintiffs who wish to seek access to federal courts must play by its rules. See Dale
v. Poston, 548 F.3d 563, 568 (7th Cir. 2008) (“Judges, of course, must construe pro
se pleadings liberally.
But procedural rules cannot be ignored.”) (internal citation
omitted). The consequence of Sheskey not doing so again will be dismissal of his lawsuit.
ORDER
IT IS ORDERED that defendant Madison Metropolitan School District’s motion
to dismiss (dkt. #18) is DENIED.
IT IS FURTHER ORDERED that Sheskey must serve defendant with the
complaint and summons in this lawsuit consistent with requirement of Federal
Rule of Civil Procedure 4 on or before December 31, 2013.
Once service is
complete, Sheskey shall file proof promptly with the court. Failure to do so will
result in the dismissal of this lawsuit. No further opportunities under Rule 4(m)
will be provided.
Entered this 17th day of December, 2013.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge
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