JANIS VAN MEERVELD, Magistrate Judge.
Before the Court is the Rule 4(m) Motion to Dismiss filed by defendants Textron Systems Marine & Land Systems, a division of Textron, Inc. ("Textron"), and Gordon Scott. (Rec. Doc. 28). For the following reasons, the Motion is GRANTED.
This is an employment discrimination lawsuit. Plaintiff Charlotte Renee Bounds is a tig and mig aluminum welder who began working for Textron in April 2017. She alleges that she was subjected to unwanted sexual harassment by senior welder Gordon Scott and other employees. For example, she says Mr. Scott asked her inappropriate questions about her sexuality, took a picture of her rear end while she was bending over welding, followed her around, and gave her inappropriate hand gestures. Ms. Bounds alleges that she reported these incidents through all channels at Textron. Following her complaints, she alleges she was subjected to a hostile work environment including negative performance evaluations, unwarranted criticisms regarding her job performance, being forced to work in close proximity to Mr. Scott, having her gas line disconnected by co-workers on the upper deck while she was welding in the bottom of the boat, and having her air bag manipulated by co-workers while she was welding. On November 16, 2017, she filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). A Notice of Right to Sue was issued on March 8, 2018. Ms. Bounds filed this lawsuit on April 26, 2018.
Pursuant to the Federal Rules of Civil Procedure, Ms. Bounds was required to complete service on the defendants by July 25, 2018, but she failed to do so. On July 31, 2018, more than 90 days after the filing of the lawsuit, this case was set for the court's call docket and Ms. Bounds was ordered to appear and explain why her lawsuit should not be dismissed for failure to timely effect service. The order provided that if service was completed by August 28, 2018, the order would be satisfied, and no appearance would be necessary. Nothing was filed in the record by that date. And neither Ms. Bounds nor her counsel appeared as ordered on August 29, 2018. The court reset the matter for its September 26, 2018, call docket, and again neither Ms. Bounds nor her counsel appeared, nor was evidence of service entered into the record by that date.
On that same day, Ms. Bounds' counsel, Julie Knight, filed a motion for extension of time to perpetuate service. Ms. Knight represented that she had been trying to obtain a waiver of service from the defendants for the preceding 60 days. She asserted that she had communicated and emailed a copy of the complaint and a waiver of service to Textron's in-house counsel and was under the belief that waiver would be provided. She explained that she had missed the September 26, 2018, docket call due to an illness. The court granted Ms. Bounds' motion and allowed Ms. Bounds until October 12, 2018, to complete service.
On October 11, 2018, Ms. Bounds filed evidence of service on Textron into the record. Ms. Bounds requested additional time to serve Mr. Scott, explaining that the process server had not been able to locate him. The court granted the extension, and Ms. Bounds filed evidence of service on Mr. Scott into the record on November 5, 2018. Textron and Mr. Scott have jointly filed the present motion to dismiss on the grounds that Ms. Bounds failed to serve them within the time period required by Federal Rule of Civil Procedure 4(m). The parties consented to proceed before the Magistrate Judge and the matter was referred to the undersigned on December 17, 2018.
"If a defendant is not served within 90 days after the complaint is filed," Federal Rule of Civil Procedure 4(m) provides that the court "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." Fed. R. Civ. Proc. 4(m). The "good cause" standard for extensions has been described as requiring:
Similarly, in
"[E]even if good cause is lacking, the court has discretionary power to extend time for service."
Where a plaintiff will be time barred from re-filing her claim upon dismissal, courts sometimes require that "(1) there is a clear record of delay or contumacious conduct by the plaintiff, and (2) the district court has expressly determined that lesser sanctions would not prompt diligent prosecution, or the record shows that the district court employed lesser sanctions that proved to be futile."
Defendants here point out that courts in this district have dismissed employment discrimination suits where plaintiff would be barred from re-filing suit. For example, in
Defendants also point to
Citing only cases from outside of this circuit,
Plaintiff here also cites
Plaintiff here further cites
324 B.R. 467, 473 (Bankr. S.D.N.Y. 2005),
Defendants argue that dismissal is warranted here. They point out that Ms. Bounds' motion for extension was filed two months and two missed docket call appearances after the 90-day period provided by Rule 4(m) had lapsed. The motion asserted an illness in late September 2018 and asserted that Ms. Bounds' counsel had emailed and communicated with Textron in an attempt to obtain a waiver of service. But, defendants submit, Textron has not been able to verify Ms. Knight's representations as to her attempts to notify Textron of the lawsuit and request waiver of service. They have no record of receiving any communication or request for waiver of service from Ms. Knight. Textron explains that in March 2018, Ms. Knight was in communication with Sarah Brown, a member of Textron's in-house counsel team, after Textron transferred Ms. Bounds to a different shift. In conjunction with the present motion, Ms. Brown has signed a declaration asserting that she and Ms. Knight never discussed plans to file or serve a lawsuit or a request for waiver of service of process. Ms. Brown's last day of work was March 29, 2018. Textron notes that her email was set up to send an automatic reply providing contact information for another employee at Textron. Textron adds that no other Textron attorney or employee has any recollection nor record of ever speaking with Ms. Knight regarding a waiver of service.
Further, Textron points out that even if Ms. Knight had requested a waiver as she asserted in her motion for extension, she did not follow up with Ms. Brown or any other Textron employee. Defendants assert that they "have now been effectively held hostage for nearly seven months . . . wondering when and if they would have to defend against Ms. Bounds's baseless claim." They argue that under the heightened "failure to prosecute" standard, dismissal is warranted because Ms. Bounds has demonstrated a clear pattern of delay and neglect. They add that Ms. Knight's lack of candor regarding the reason for the delay constitutes an aggravating factor.
Ms. Bounds argues that her lawsuit should not be dismissed. Her counsel explains that her failure to appear in court two times for this court's call docket is because she mistakenly believed her paralegal was receiving copies of the court's notices and entering the dates on her calendar. She says she did not realize that her paralegal was not signed up for emails until September 25, 2018, the night before the second docket call when she was ill with the flu.
As to her efforts to serve the Defendants, she explains that in March 2018, she emailed Textron's human resources department because Ms. Bounds was complaining of continued harassment. She points out that the email notified the human resources department that a Right to Sue Notice had been received. The March 23, 2018, email to Ms. Brown that Ms. Bounds has attached to her opposition memorandum references the right to sue notice but does not state that Ms. Bounds intended to file suit, nor does it request a waiver. The March 28 and March 29, 2018, emails sent to Ms. Brown concern only the shift change, alleged harassment Ms. Bounds was experiencing, and alleged safety concerns of Ms. Bounds. Ms. Knight has filed an affidavit asserting that she called Textron at the end of April 2018 and informed the person answering that she was calling about Ms. Bounds and that she had previously spoken about the matter with Textron's staff attorney, Ms. Brown. Ms. Knight said she was directed to another female employee, who Ms. Knight believed to be another staff attorney. Ms. Knight asserts that this employee agreed to waive service. Ms. Knight asserts that she mailed a copy of the lawsuit and the request for waiver to Textron on May 24, 2017, using the same human resources department address to which she had previously sent correspondence regarding Ms. Bounds. A copy of that letter is attached to the affidavit, reflecting an address at 19401 Chef Menteur Hwy, to the attention of "Human Resources and Staff Counsel," and addressed to "Transport personnel." In her affidavit, Ms. Knight adds that she was not informed that Ms. Brown would be leaving Textron, and in the memorandum, she argues that she "believes someone else took the call to evade notice and service in human resources." Ms. Knight also explains that she hired a private investigator to locate Mr. Scott in July 2018, but that Mr. Scott could not be found because his address was a used car lot. The same private investigator located Mr. Scott in October 2018 using information from a recent car sale.
Ms. Bounds argues that good cause exists here because Textron has attempted to evade her attempt to obtain a waiver. Ms. Bounds notes that she has been terminated from her employment, and she argues that she cannot afford any costs of this suit. She urges this court to consider the four-factor test and allow an extension even if good cause does not exist. She points out that she would be time-barred from re-filing this action if it was now dismissed, and she insists that defendants are not prejudiced by the delay because they were given notice by letter about all the events in this lawsuit by plaintiff's former counsel William Schieffer who requested defendants preserve evidence. She adds that defendants were put on notice of Ms. Bounds' claims when their human resources officer was emailed about her complaints.
In reply, Textron responds that Ms. Knight fails to identify the female employee with whom she purportedly discussed a waiver of service. Textron says that the purported May 24, 2018, letter would have been redirected to human resources employee Beamer Aston, but he never received the letter. In his declaration, Mr. Aston adds that any telephone call to Textron human resources regarding Ms. Bounds would have been directed to him.
There is no dispute here that Ms. Bounds failed to timely serve the defendants. As discussed above, good cause for an extension of time to do so typically requires more than inadvertence, mistake of counsel, or ignorance of the rules. At best, however, that is what the record here shows. Ms. Bounds' attorney seemed to believe that sending a letter on May 24, 2018, was sufficient to meet her obligation to complete service on Textron by July 25, 2018. As noted by the court in
As to Mr. Scott, it appears that Ms. Bounds' first attempt at service was not until July 2018. But when that attempt was unsuccessful, she again did nothing more until the end of September, despite the court's orders. Of note, although Ms. Bounds' counsel explains her failure to appear as ordered resulted from a mistaken belief that her paralegal was calendaring the dates (an excuse that would not typically be sufficient to establish good cause), Ms. Bounds does not assert that she did not receive the orders themselves. Despite receiving explicit notice from the court that the time period for serving had passed and that the lawsuit risked dismissal, she did not undertake any steps to effect service. On these facts, the court simply cannot find good cause.
Moreover, on these facts, the court cannot exercise its discretion to grant an extension. Although Ms. Bounds will be barred from re-filing her claim, as the cases cited by both sides make clear, that alone is not enough to justify an extension of time. Ms. Bounds' failure to make any serious attempt at service even after two warnings by this court demonstrates a clear pattern of delay. Her failure to act when ordered by the court to do so indicates that lesser sanctions would not have prompted diligent prosecution. And when she finally did appear to address the defects in service, counsel said she had been attempting to obtain a waiver of service for 60 days after emailing and communicating with Textron. But in fact, she later represented that her only attempts to obtain a waiver were four months earlier when she claims she made a phone call to an unnamed employee with Textron and claims she sent a letter with the request for waiver of service. Ms. Bounds' failure to be forthcoming about her attempts at service is an aggravating factor. Although Textron and Mr. Scott do not point to prejudice in the form of lost evidence, as the Fifth Circuit noted in
Ms. Bounds has pointed to no cases in this circuit where similar circumstances were held insufficient to dismiss under Rule 4(m). And given Ms. Bounds' failure to make efforts at service within the 30 days following each order setting this matter for the call docket, and in light of Ms. Bounds' assertion in requesting an extension in September that she had been engaged in efforts to obtain a waiver during the previous 60 days when she had not, the court finds that even the out of circuit cases cited by Ms. Bounds are distinguishable. Further, the court rejects Ms. Bounds' suggestion that the defendants were evading service. As to Textron, that suggestion seems to be pure conjecture. As to Mr. Scott, while there is some indication he may have avoided coming to the gate of his workplace to accept service, without more and given Ms. Bounds' minimal attempts at service until late September 2018, this is not enough to justify her untimeliness. Thus, the court will not exercise its discretion to grant an extension absent good cause in this case.
For the foregoing reasons, the Motion to Dismiss (Rec. Doc. 28) is GRANTED. Plaintiffs' claims against Textron and Scott are hereby dismissed without prejudice.