Opinion
Civil Action No. 04-469 (GK).
April 19, 2005
MEMORANDUM OPINION
Plaintiff, Chuck Coppedge, through his Next Friend, Yolanda Coppedge, brings this action against Defendants, the District of Columbia and Elfreda Massie, in her official capacity as the then-Superintendent of the District of Columbia Public Schools ("DCPS"). Plaintiff alleges that Defendants violated the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. §§ 1400-1487, by failing to provide him with a free appropriate public education ("FAPE"). This matter is before the Court on Defendants' Motion for Reconsideration and for Dismissal of Complaint. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, for the reasons discussed below, Defendants' Motion for Reconsideration and for Dismissal of Complaint is granted.
I. BACKGROUND
On March 23, 2004, Plaintiff filed a Complaint, alleging that he is a learning-disabled child who has not received necessary special education services from DCPS. Plaintiff claims that, at a due process hearing, the Hearing Officer erred when he failed to place Plaintiff at High Roads Academy, a private school.
Plaintiff seeks: (1) judgment against Defendants; (2) a declaratory judgment that Defendants violated Plaintiff's rights; (3) an injunction ordering Defendants to place him at High Roads Academy; (4) a declaratory judgment that High Roads Academy is his current educational placement; (5) a declaratory judgment that the Hearing Officer is a DCPS employee; and (6) attorneys fees and costs.
Pursuant to Fed.R.Civ.P. 4(m), Plaintiff was required to serve Defendants with the summons and complaint on or before July 21, 2004. On August 25, 2004, Plaintiff filed an Affidavit for Default and a Motion for Default Judgment, in which counsel said Defendants "were served with process on March 25, 2004." Aff. in Support of Default at 1. That same day, the Clerk of the Court made an entry of default against Defendant.
As of September 14, 2004, however, there was no record in the Court files that Plaintiff had served Defendants. For that reason, the Court ordered Plaintiff to show cause by September 30, 2004, why the Complaint should not be dismissed for failure to prosecute. See Docket Entry No. 4. On September 29, 2004, Plaintiff informed the Court that "On March 25, 2004, I received notice that Defendants had been electronically served." Decl. of Rebekah Gleason at ¶ 4.
On December 23, 2004, Defendants filed the instant Motion for Reconsideration and for Dismissal of Complaint, seeking reconsideration of the entry of default and dismissal of the Complaint for failure to effect service within the time limits specified in Fed.R.Civ.P. 4(m).
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
Defendants request reconsideration of the entry of default against them. They further claim that Plaintiff's Complaint should be dismissed because Plaintiff failed to timely serve them in violation of Fed.R.Civ.P. 4(m). Plaintiff contends that he "was informed that the summons and complaint" had been electronically served on Defendants and has shown good cause for the failure to serve. Pl.'s Opp. at 2.
Plaintiff does not object to vacating the entry of default, Pl.'s Opp. at 1, and Defendants' request for reconsideration of that entry therefore is granted as unopposed.
Rule 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. Fed.R.Civ.P. 4(m). 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 Civil 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 to timely effect service); Hilska v. Jones, 297 F. Supp. 2d 82, 88 (D.D.C. 2003) (same).
Rule 4(m) states, in relevant part, "[i]f 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 Civil 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 Civil Rule 83.23.
In addition, "[a]n attorney or pro se party who obtains a CM/ECF password consents to electronic service of all documents,subsequent to the original complaint, that are filed by electronic means . . ." Local Civil Rule 5.4(b)(6) (emphasis added). Thus, complaints are not and cannot be served electronically.
Plaintiff filed the Complaint on March 23, 2004. Pursuant to Rule 4(m), he was required to serve Defendants with the summons and Complaint on or before July 21, 2004. Plaintiff admits that Defendants have never been properly served. Accordingly, the record is clear that Plaintiff failed to effect service within the applicable time frame.
Plaintiff has also failed to show any good cause for his failure to timely serve Defendants. While he argues that he believed service had been effected by electronic means, Local Civil Rule 5.4(b)(6) clearly indicates that there is no electronic service of complaints. His justification therefore is unreasonable as counsel, especially counsel as experienced as Mr. Bogin, is expected and presumed to know the Local Rules of the Court. See Pellegrin Levine, Chartered, 961 F.2d at 282 (upholding dismissal of complaint for failure to show good cause because plaintiff "must surely have been aware" of the "established rule in the District of Columbia requiring service of process on all partners individually").
Furthermore, Plaintiff's electronic notification would have indicated that the Complaint was electronically mailed to only one address, that of Plaintiff's counsel, not Defendants'. Plaintiff's Affidavit in Support of Default declaring that Defendants were served on March 25, 2004, and declaration in response to the Order to Show Cause stating that counsel "received an electronic notification that Defendants had been electronically served" are therefore false or inaccurate. Decl. of Rebekah Gleason at ¶ 4. Thus, failure to effect service was not based on good cause but was "nothing short of inexcusable neglect." Id. (internal quotation and citation omitted).
The conduct of Plaintiff's counsel is of extremely serious concern. Plaintiff's counsel have now given three differing versions of what has occurred, all of which are inconsistent with each other. In Plaintiff's cursory, two-page Opposition, counsel have neither shown good cause for their failure to timely serve Defendants, nor have they explained how they could have believed service had been effected when there is no docket entry to that effect. Dismissal of this case with prejudice therefore is warranted.
In the Opposition to the present Motion, Plaintiffs' counsel states, very ambiguously, that she "was informed that the summons and Complaint" were served electronically on Defendants. Pl.'s Opp. at 2. Informed by whom and under what circumstances?
V. CONCLUSION
For the foregoing reasons, Defendants' Motion for Reconsideration and for Dismissal of Complaint is granted. An Order will issue with this Opinion.