FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                        November 18, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
MARK ANTHONY PALZER,

      Plaintiff - Appellant,

v.                                                          No. 16-5021
                                               (D.C. No. 4:15-CV-00564-GKF-TLW)
COX OKLAHOMA TELECOM, LLC,                                  (N.D. Okla.)
a Delaware corporation, CoxCom, Inc.,
CoxCom, LLC, Cox Communications,
LLC, or Cox Communications, or Cox
Communications Kansas, LLC,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, GORSUCH, and MATHESON, Circuit Judges.
                  _________________________________

      Mark Anthony Palzer appeals the district court’s dismissal of his employment

discrimination suit for failure to timely obtain service. Exercising jurisdiction under

28 U.S.C. § 1291, we reverse.

      After receiving his right-to-sue letter from the Equal Employment Opportunity

Commission, Mr. Palzer sought the services of attorney N. Kay Bridger-Riley, who

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
had recently suffered an accident that resulted in multiple broken bones.

Ms. Bridger-Riley filed a petition in state court on Mr. Palzer’s behalf against his

former employer, Cox Communications, on January 20, 2015. Due to the suite of

medications she was taking as a result of her accident, however, she neglected to

effect service on any of the Cox entities named as defendants. Because

Ms. Bridger-Riley had previously resigned her admission to the Northern District of

Oklahoma bar, she listed her former colleague Christopher Camp as counsel on the

case as a contingency if the case was removed to federal court pursuant to an

agreement between them.

      On August 24, the state court issued a “Notice of Disposition Docket” in

connection with this case pursuant to Okla. Stat. tit. 12, § 1083, indicating that the

court would dismiss the case without prejudice “unless counsel appears and shows

good cause why the case should be allowed to remain on the docket.” Aplt. App.

at 65. Mr. Camp received the notice but Ms. Bridger-Riley did not. Mr. Camp

forwarded the notice to Ms. Bridger-Riley, after which she sent the petition and

summons to the defendants via certified mail. Mr. Camp appeared before the

state-court judge on September 10 and explained how Ms. Bridger-Riley’s medical

issues led to her failure to effect service. The state court granted Mr. Palzer an

additional 30 days to complete service. Cox was served on September 14.

      On October 2, Cox removed the action to federal court and moved to dismiss

for failure to timely serve summons under Federal Rule of Civil Procedure 12(b)(5).

Mr. Palzer moved to strike the motion, arguing that the state court had already found

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that good cause existed at the disposition docket hearing. The district court

determined that the state court’s decision to extend at the hearing “did not amount to

an analysis of good cause under [Okla. Stat. tit. 12,] § 2004(I).” Aplt. App. at 67

(brackets and internal quotation marks omitted). Accordingly, the court ordered

Mr. Palzer to file a brief stating his good cause so it could consider in the first

instance whether he met his burden. Mr. Palzer did so, recounting

Ms. Bridger-Riley’s medical issues and how they obstructed her ability to timely

serve the defendants. In a decision citing no legal authority, the district court

concluded that Mr. Palzer failed to establish good cause for failure to timely serve

because he “was represented during the entirety of the service period by at least one

attorney who could have effectuated service,” referring to Mr. Camp. Aplt. App.

at 110–11. The court reasoned that, despite the agreement between

Ms. Bridger-Riley and Mr. Camp, Mr. Palzer did “not explain why . . . Mr. Camp

could not have effectuated service.” Aplt. App. at 110.

       We review the district court’s dismissal of the case for failure of proper

service, and consequently its determination of good cause, for an abuse of discretion.

See Constien v. United States, 

, 1213 (10th Cir. 2010). “Under the

abuse of discretion standard, a trial court’s decision will not be disturbed unless the

appellate court has a definite and firm conviction that the lower court made a clear

error of judgment or exceeded the bounds of permissible choice in the

circumstances.” Phelps v. Hamilton, 

, 1324 (10th Cir. 1997). “When

we apply the ‘abuse of discretion’ standard, we defer to the trial court’s judgment

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because of its firsthand ability to view the witness or evidence and assess credibility

and probative value.” Brown v. Presbyterian Healthcare Servs., 

, 1331

(10th Cir. 1996) (internal quotation marks omitted). Discretion “means a sound

discretion, that is to say, a discretion exercised not arbitrarily or willfully, but with

regard to what is right and equitable under the circumstances and the law, and

directed by the reason and conscience of the judge to a just result.” Rogers v. Andrus

Transp. Servs., 

, 1152 (10th Cir. 2007) (internal quotation marks

omitted).

       This case occurs at a curious intersection of state and federal law. Where

service is effected prior to removal to federal court, we look to state law to determine

if service was perfected. Wallace v. Microsoft Corp., 

, 706 (10th Cir.

2010). Section 2004 provides that, “[i]f service of process is not made upon a

defendant within one hundred eighty (180) days after the filing of the petition and the

plaintiff cannot show good cause why such service was not made within that period,

the action shall be deemed dismissed . . . without prejudice.” Okla. Stat. tit. 12,

§ 2004(I). But when “process served proves to be defective,” 28 U.S.C. § 1448

(emphasis added), our looking to state law “does not foreclose service being effected

in the federal district court.” 

(brackets and internal

quotation marks omitted). Here, though service was perfected prior to removal, the

district court invalidated service in finding that Mr. Palzer did not establish good

cause. Federal Rule of Civil Procedure 4(m) thus gives “the plaintiff [90] days from

the date defendant removes the case to federal court in which the imperfect or

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defective service may be cured.” 

(internal quotation marks omitted).

Accordingly, the district court abused its discretion in dismissing the suit instead of

giving Mr. Palzer the opportunity to effect service under federal law.

      We are further assured of our decision in light of the district court’s manifest

disregard for the state court’s September 10 decision. To be sure, the district court

may dissolve or alter prior state court orders after removal, Granny Goose Foods,

Inc. v. Bhd. of Teamsters, 

, 437 (1974), but we do not take lightly the

notion that Cox can avoid this suit in federal court after the state court expressly

allowed the case to proceed, whether its decision amounted to a good cause finding

or not. Such a result is not “a just result,” see 

, because it is

inequitable as it is incompatible with our discouragement of forum-shopping, see

Hanna v. Plumer, 

, 468 (1965) (observing that “discouragement of

forum-shopping” is one of “the twin aims of the Erie rule.”). Any deference we owe

the district court is lessened in situations such as this where there were no witnesses

called and no credibility assessed. See 

. To reach its

decision without citation to any authority confirms for us that the district court “made

a clear error of judgment [and] exceeded the bounds of permissible choice in the

circumstances.” See 

.




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      We therefore vacate the judgment of the district court and remand the case to

the district court with instructions to allow Mr. Palzer 90 days to serve process in

accordance with the dictates of 28 U.S.C. § 1448 and Rule 4(m).


                                            Entered for the Court


                                            Paul J. Kelly, Jr.
                                            Circuit Judge




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