Opinion
Civil Action No. 04-2372, Section: "R" (4).
April 29, 2005
ORDER AND REASONS
The Court, having considered the complaint, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge, and the failure of any party to file an objection to the Magistrate Judge's Report and Recommendation, hereby approves the Report and Recommendation of the United States Magistrate Judge and adopts it as its opinion in this matter.
I. BACKGROUND
In 2002, plaintiff Rhonda Kimble was employed as an officer manager when her employer was taken over by defendant Allied Physicians, LLC. Kimble alleged that during the takeover, she informed her supervisor that she had been diagnosed with cervical disk disease. In January 2002, Kimble was allegedly demoted from officer manager to medical assistant. Kimble alleges that she was told that she would resume her prior position shortly, and she continued to perform supervisory duties. Kimble took medical leave to have surgery in May 2002. When she returned to work in August 2002, she was placed on light duty restriction. She learned that another employee, defendant Denise Ponthieux, now held the supervisory position.
In October 2002, Kimble allegedly injured herself reaching for a heavy box. On December 3, 2002, Kimble was terminated from her position and asserts that she was replaced by a Caucasian employee. According to Kimble, her discharge notice states that she was discharged because Allied could not accommodate her disability because there was no light-duty employment available, even though Kimble indicated that she was performing light-duty tasks the week prior to her termination.
On September 11, 2003, Kimble filed a charge of discrimination with the EEOC, alleging that she was discriminated against on the basis of her race and her disability. On May 16, 2004, the EEOC closed its file on her charge of race discrimination because it was untimely and on her charge of disability discrimination because the information obtained did not establish a violation of the statute.
On August 23, 2004, Kimble filed a complaint in this Court in forma pauperis, alleging race and disability discrimination, and a summons was issued for each of the defendants. Kimble was provided with information as to how she could request that the U.S. Marshal effect service of the summons and complaint, but she did not make any such requests. On September 2, 2004, Kimble filed an amended complaint, for which no summons were issued.
On December 28, 2004, the Magistrate Judge ordered Kimble to show cause why her complaint should not be dismissed for failure to effect service under Federal Rule of Civil Procedure 4(m). Kimble did not respond to the Magistrate Judge's order, nor did she take any steps to effect service. Accordingly, on March 17, 2004, the Magistrate Judge issued a Report and Recommendation, recommending that Kimble's complaint be dismissed without prejudice for failure to effect service within 120 days under Federal Rule of Civil Procedure 4(m). Kimble has not objected to the recommendation.
II. LEGAL STANDARD
Rule 4(m) establishes the time limit for service of process. It provides:
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). Thus, if plaintiff does not make proper service within 120 days after the complaint is filed, the district court may either "dismiss the action without prejudice . . . or direct that service be effected within a specified time." Id. The second part of the rule restricts the district court's ability to dismiss the case, making an extension of time mandatory when plaintiff shows good cause. See Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996). When service of process is challenged, the plaintiff carries the burden of proving good cause for the failure to effect timely service. See Glitz v. St. Tammany Parish Hospital, 125 F.R.D. 138 (E.D. La. 1998).
The Federal Rules grant special considerations to a plaintiff who proceeds in forma pauperis. Pursuant to Rule 4(c) (2),
[a]t the request of the plaintiff . . . the court may direct that service be effected by a United States Marshal, or other person or officer specially appointed by the court for that purpose. Such an appointment must be made when plaintiff is authorized to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
FED. R. CIV. P. 4(c) (2); see also 28 U.S.C. § 1915(c) (emphasis added). In interpreting this Rule, the Fifth Circuit has held that:
a plaintiff proceeding in forma pauperis is entitled to rely upon service by the U.S. Marshals and should not be penalized for failure of the Marshal's Service to properly effect service of process, where such failure is through no fault of the litigant . . . [but] at a minimum, a plaintiff should request service upon the appropriate defendant and attempt to remedy any apparent service defects of which a plaintiff has knowledge.Lindsey v. United States Railroad Retirement Bd., 101 F.3d 444, 447 (5th Cir. 1996) (emphasis added); Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). A plaintiff proceeding in forma pauperis can therefore rely upon service by the U.S. Marshal provided the plaintiff requests such service and attempts to remedy any known service defects.
III. DISCUSSION
Over 120 days have passed since Kimble's amended complaint was filed on September 2, 2004. Service has not been effected, and there is no indication that Kimble made any effort to request that the U.S. Marshals effect proper service. Although Kimble, as a pro se plaintiff, should not be penalized for failure of the U.S. Marshal to effect service, she is responsible for initially requesting that the Marshal serve the defendants. See Lindsey, 101 F.3d at 447. Further, she is responsible for attempting to remedy any defects in service of which she has knowledge. Id. Kimble was notified of the defect in service by the Magistrate Judge's December 28, 2004 rule to show cause, and she did not respond. Kimble again received notification of the service defect when the Magistrate Judge issued the Report and Recommendation on March 17, 2004, but she still has not made a good faith effort to remedy the service defects of which she had knowledge. See Wade v. Powell, No. Civ.A. 02-2590, 2003 WL 22326561, at *2 (E.D. La. Oct. 3, 2003). Even taking Kimble's pro se status into account, Kimble has had a more than reasonable amount of time to cure the defect in service and has made no attempt to do so.
Rule 4(m) provides a mandatory extension of the time for service if plaintiff shows good cause for the failure to serve within 120 days. Good cause requires "some showing of 'good faith on the party seeking an enlargement and some reasonable basis for non-compliance within the time specified.'" Purvis v. Jenkins, No. Civ.A. 97-0263, 1998 WL 290212, at *2 (E.D. La. June 2, 1998) (citing Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985)). In other words, plaintiff shows good cause for the delay when she makes "a good faith attempt to effectuate service of process, but the service nevertheless fails to satisfy all the requirements set forth in the applicable rule." Chilean Nitrate Corp. v. M/V Hans Leonhardt, 810 F. Supp. 732, 735 (E.D. La. 1992).
The 120-day deadline for Kimble's amended complaint passed on January 2, 2005, and Kimble has not put forth any showing of a good faith attempt to effectuate service of process. Torrence v. Comm'r of Soc. Sec., No. Civ. A. 98-0049, 1999 WL 169465, at *2 (E.D. La. Mar. 24, 1999) ("Inasmuch as plaintiff has not responded to this motion, he has not demonstrated good cause for his failure to effect service properly and timely."). Although the Court recognizes that the Advisory Committee Notes regarding the 1993 Amendments to Rule 4(m) indicate that the Court is authorized to enlarge the 120-day period "even if there is no good cause shown," the Court sees no reason to exercise its discretion to do so in this case, particularly given that Kimble has failed to take any action to prosecute the case since she was ordered to show cause.
III. CONCLUSION
For the foregoing reasons, the Court approves the Report and Recommendation of the United States Magistrate Judge and dismisses Kimble's complaint without prejudice.