Opinion
C. A. 1:21-4019-JD-SVH
05-30-2023
Rosa Alba Licon, as Personal Representative of the Estate of Clemente Licon, Plaintiff, v. South Carolina Department of Corrections, Officer Hunter Peterson, Officer Micquel Cleveland, Officer Thomas Pattman, Officer Tucker-Allen, Major James Parrish, Associate Warden Lashawn Peeples, and Warden Michael Stephan, Defendants.
REPORT AND RECOMMENDATION
SHIVA V. HODGES UNITED STATES MAGISTRATE JUDGE
This matter comes before the court on Plaintiff's motion for an extension of time in which to serve defendants Officer Thomas Pattman and Livingston. For the following reasons, the undersigned recommends Plaintiff's motion be denied and that Pattman be dismissed from this case.
Livingston has never been made a party to this case.
I. Factual and Procedural Background
Plaintiff filed an amended complaint on December 8, 2022, listing the following Defendants in the caption: South Carolina Department of Corrections; Officer Hunter Peterson; Officer Miquel Cleveland; Officer Thomas Pattman; Officer Tucker-Allen; Major James Parrish; Associate Warden Lashawn Peeples; and Warden Michael Stephan. [ECF No. 25]. Captain Livingston was not listed in the caption, but the first paragraph of the amended complaint stated that Livingston was being sued as an individual. Id. Defense counsel advised Plaintiff's counsel on January 5 and 6, 2023, that he had been retained to represent the individuals named in the suit, but only had authority to accept service on behalf of Peterson, Cleveland, Peeples, and Parrish. [ECF No. 41-1].
Plaintiff served her Third Discovery Requests on Defendant SCDC on December 27, 2022, seeking current or most recent contact information for all Defendants except Livingston. [ECF No. 41-2]. Defense counsel responded on January 23, 2023, and provided the last known address and phone numbers for Pattman, Tucker-Allen, and Stephan. Id. The same day, Defense counsel informed Plaintiff he had been authorized to waive service for Stephan. [ECF No. 41-3]. By email dated January 26, 2023, Defense counsel inquired whether Plaintiff intended to sue Livingston. Id. Plaintiff's counsel responded that she would revisit Livingston. Id.
Defense counsel emailed Plaintiff's counsel on March 4, 8, and 31, 2023, to inquire whether Livingston was being sued and served. [ECF Nos. 41-4, 41-5, and 41-6]. On March 8, 2023, Plaintiff's counsel also asked Defense counsel whether he would consent to a motion for an extension to serve Pattman and Tucker-Allen, and Defense counsel gave consent. [ECF No. 414]. Plaintiff moved for, and was granted, a 60-day extension of time in which to effect service on Pattman and Tucker-Allen. [ECF Nos. 34, 35].
Plaintiff first asked for Livingston's address on April 28, 2023, and indicated she intended to “simply amend and correct the caption.” [ECF No. 41-5]. Defense counsel provided Livingston's last known address to Plaintiff's counsel on May 4, 2023. [ECF No. 41-5]. On May 5, 2023, Plaintiff provided a draft of a proposed consent motion regarding an extension of time to serve Pattman and Livingston. [ECF No. 41-6]. Defense counsel responded that he did not consent as to Livingston and noted that Plaintiff's motion contained false information. Id. Plaintiff filed the motion on May 5, 2023. Served defendants filed a response on May 10, 2023, and Plaintiff did not file a reply.
II. Analysis
Federal Rule of Civil Procedure 4(m) states in relevant part:
If a defendant is not served within 90 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.
Fed. R. Civ. P. 4(m). Here, Plaintiff has not shown good cause for failure to effect service on Livingston or Pattman. The email correspondence reveals Plaintiff failed to respond to Defense counsel's multiple inquiries as to whether she planned to proceed against Livingston, who is not even named in the caption. As to Pattman, Plaintiff has not shown good cause as to why she has not effected service on Pattman within 150 days. Although she states he has evaded service at his house, she fails to provide any detail regarding attempts to serve Pattman. This case is among the oldest on the undersigned's docket and the parties need to focus on the substantive issues in this case to ensure discovery is timely completed and dispositive motions filed so the district judge has adequate time to try this case, if necessary. The undersigned recommends the motion for an extension of time for service be denied.
To ensure the parties timely complete pretrial proceedings in this case, the undersigned will issue a First Amended Scheduling Order.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”