Opinion
Civil Action No. 03-1482 (GK)
March 24, 2004
MEMORANDUM OPINION
Plaintiff, Tammy Medley, an employee of the U.S. Securities and Exchange Commission ("SEC"), brings this suit alleging employment discrimination in violation of Title VII, 42 U.S.C. § 2000e, et. seq. ("Title VII"), and the Rehabilitation Act of 1973, 29 U.S.C. § 791, et. seq., Defendant is William H. Donaldson, Chairman, SEC.
This matter is now before the Court on Defendant's Motion to Dismiss for Insufficient Service of Process or, in the alternative, for Summary Judgment for Failure to Exhaust Administrative Remedies or, in the alternative, for a More Definite Statement. Upon consideration of the Motion, Opposition, and Reply, and the entire record herein, and for the reasons stated below, Defendant's Motion is granted.
I. BACKGROUND
In 2001, and then again in 2002, Plaintiff filed a formal complaint of race and disability discrimination with the SEC Equal Employment Opportunity ("EEO") Office.
On July 3, 2003, Plaintiff filed the instant action alleging race and disability discrimination and retaliation in violation of Title VII and the Rehabilitation Act of 1973. Specifically, she claims that Defendant, "failed to communicate with [her] relative to the terms and conditions of [her] employment," Compl., ¶ 9; "failed to reasonably accommodate [her] disabling medical conditions and/or attempt[ed] to force [her] to be medically retired on disability when [she] requested sick leave,"id.; "denied [her] routine step increase and/or den[ied] [her] job promotions and/or improperly evaluat[ed] [her] performance and/or den[ied] [her] requests to transfer to other positions," id.; "denied [her] an "On-the-Spot" award and/or a "Special Act" award when all other employees in the Office of Financial Management-Financial Analysis Section received awards," id., at ¶ 11; "gave [her] the lowest monetary performance award in the Office of Financial Management-Financial Analysis Section, relative to [her] year end (2001) performance appraisal," id.; and "deliberately and intentionally delayed the processing of [her] workers' compensation claim." Id.
Plaintiff seeks (1) an injunction against future discrimination, Compl., at 5; (2) an "immediate transfer to a position amenable to [her] and commensurate with [her] knowledge, skills, and abilities," id.; (3) "retroactive monetary awards commensurate with those received by similarly situated employees in the Office of Financial Management-Financial Analysis Section,"id.; (4) a "change in [her] annual performance appraisal (s) for the relevant time period (s)," id.; (5) "restoration of any sick and annual leave denied and/or used as a result of Defendant's actions," id.; (6) "expungement of [her] personnel records of any derogatory information" related to her claims, id.; and (7) "past, present and future medical expenses" related to her claims.Id.
Plaintiff also seeks "front pay, compensatory damages" and "reasonable attorneys fees." Id.
Pursuant to Fed.R.Civ.P. 4(m), Plaintiff was required to serve Defendant with the summons and complaint on or before October 31, 2003. As of December 2, 2003, there was no record that Plaintiff had served Defendant. As such, the Court ordered Plaintiff to show cause by December 17, 2003 why the Complaint should not be dismissed for failure to prosecute. See Docket Entry No. 3. On December 18, 2003, Plaintiff informed the court that "o[n] November 1, 2003" she had "timely served" Defendant. See Pl.'s Response to Order to Show Cause.
On February 9, 2004, Defendant filed the instant Motion to Dismiss.
II. STANDARD OF REVIEW
A motion to dismiss should only be granted "when it appears beyond doubt that, under any reasonable reading of the complaint, the plaintiff will be unable to prove any set of facts that would justify relief." Hishon v. King Spaulding, 467 U.S. 69, 73 (1984). Because such motions "summarily extinguish litigation at the threshold and foreclose the opportunity for discovery and factual presentation, [they] should be treated with the greatest of care."Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987). Accordingly, the factual allegations of the complaint must be presumed true and liberally construed in favor of the plaintiff. Shear v. Nat'l Rifle Ass'n of Am., 606 F.2d 1251, 1253 (D.C. Cir. 1979).
III. ANALYSIS
Defendant claims that Plaintiff's Complaint should be dismissed because Plaintiff failed to timely serve him in violation of Fed.R.Civ.P. 4 (m). In the alternative, Defendant alleges that he is entitled to judgment as a matter of law on the ground that Plaintiff failed to exhaust her administrative remedies prior to filing suit. It is unnecessary for the Court to decide the issue of exhaustion because the record shows clearly that Plaintiff did not timely serve Defendant and failed to show any good cause for her failure to effect such service.
Fed.R.Civ.P. 4(m) requires a plaintiff to serve the summons and a copy of the complaint on each named defendant within 120 days of filing the complaint. If the plaintiff fails either to effect service within the specified time or to show good cause for failing to effect service, the court may dismiss the action without prejudice. See id.; Local Rule 83.23 (providing that the court may dismiss a case sua sponte for failure to prosecute); Pellegrin Levine, Chartered v. Antoine, 961 F.2d 277, 282 (D.C. Cir. 1992) (dismissing complaint for failure of timely service);Hilska v. Jones, 297 F. Supp.2d 82, 88 (D.D.C. 2003) (same);TIG Insurance Co. v. 2200 M St., LLC, 216 F.R.D. 2, 3 (D.D.C. 2003) (same); Claasen v. Brown, 1996 WL 79490, at *2 (D.D.C. 1996) (same); Burns Russell Co. of Baltimore v. Oldcastle, Inc., 166 F. Supp.2d 432, 438-39 (D.Md. 2001) (same).
Rule 4(m) states, in relevant part, "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).
Local Rule 83.23 states, "A dismissal for failure to prosecute may be ordered by the Court upon motion by an adverse party, or upon the Court's own motion. An order dismissing a claim for failure to prosecute shall specify that the dismissal is without prejudice, unless the Court determines that the delay in prosecution of the claim has resulted in prejudice to an opposing party." Local Rule 83.23.
Plaintiff filed the Complaint on July 3, 2003. Pursuant to Rule 4(m), Plaintiff was required to serve Defendant with the summons and complaint on or before October 31, 2003. Plaintiff admits that Defendant was not served until November 1, 2003. See Pl.'s Response to the Order to Show Cause. Accordingly, the record is clear that Plaintiff failed to effect service within the specified time.
In Plaintiff's response to the Court's Order to Show Cause, Plaintiff offered no explanation for her failure to timely serve Defendant. See Pl.'s Response to Order to Show Cause. Similarly, in Plaintiff's Opposition to Defendant's Motion to Dismiss, Plaintiff fails to respond to Defendant's ineffective service claim. In a footnote, Plaintiff represents to the Court that "[a] document concerning Defendant's allegations that Plaintiff did not timely serve Defendant . . . will be filed under seal." Pl.'s Opp'n at 1, n. 1. To date, no such document has been filed.
Plaintiff has also failed to show any good cause for her failure to timely serve Defendant. In fact, Plaintiff does not even attempt to explain why she did not serve Defendant within 120 days of filing the Complaint.
Accordingly, Plaintiff's Complaint must be dismissed without prejudice for insufficiency of service of process pursuant to Fed.R.Civ.P. 12(b) (5).
Significantly, since February 2003, Plaintiff's counsel has had three other cases dismissed for failure to comply with service-of-process requirements. See Dixon v. England, CA 02-823 (D.D.C. Feb. 13, 2003) (dismissing suit pursuant to Rule 4(m) for failure to properly file proof of service); Cabera v. England, CA 02-2037 (D.D.C. May 2, 2003) (same); Johnson v. England, CA 02-1453 (D.D.C. April 22, 2003) (same).
IV. CONCLUSION
For the reasons stated, Defendant's Motion to Dismiss is granted.
An Order will issue with this Opinion.
ORDER
Plaintiff, Tammy Medley, an employee of the U.S. Securities and Exchange Commission ("SEC"), brings this suit alleging employment discrimination in violation of Title VII, 42 U.S.C. § 2000e, et. seq. ("Title VII"), and the Rehabilitation Act of 1973, 29 U.S.C. § 791, et. seq., Defendant is William H. Donaldson, Chairman, SEC.
This matter is now before the Court on Defendant's Motion to Dismiss for Insufficient Service of Process or, in the alternative, for Summary Judgment for Failure to Exhaust Administrative Remedies or, in the alternative, for a More Definite Statement. Upon consideration of the Motion, Opposition, and Reply, and the entire record herein, and for the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that Defendant's Motion to Dismiss [#12] is granted without prejudice.