Opinion
CIVIL ACTION NO. 2:09cv419-MHT (WO).
April 1, 2010
OPINION AND ORDER
Plaintiffs Shiloh Missildine and Ashley Barlett Missildine, individually and as the next friends and natural parents of M.M., a minor, filed this lawsuit against several defendants, including Virginia Robinson. The Missildines charge violations of Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. § 1681(a) and assert the following state-law claims: invasion of privacy; outrage; assault and battery; negligent, wanton and malicious training, supervision and retention; and false imprisonment. Jurisdiction over the Missildines' federal claims is proper under 28 U.S.C. § 1331 (federal question). Jurisdiction over their state-law claims is appropriately invoked pursuant to 28 U.S.C. § 1367 (supplemental).
They name Robinson as a defendant individually and in her official capacity as director of another defendant, Community Action Agency of Chambers-Tallapoosa-Coosa, doing business as V. Robinson Head Start.
This lawsuit is before the court on Robinson's motion to dismiss pursuant Fed.R.Civ.P. 12(b)(5) and 4(m). For the reasons that follow, that motion will be denied.
I. BACKGROUND
A brief chronology of this lawsuit is warranted:
• May 8, 2009: The Missildines filed their initial complaint.
• August 11, 2009: The Missildines attempted to serve process on each defendant by certified mail.
• August 14, 2009: The Missildines filed an amended complaint.
• September 8, 2009: Robinson joined five other defendants in filing an answer to the amended complaint.
• September 18, 2009: The summons and complaint intended for Robinson were returned to the clerk of the court and the following docket entry was made: "Mail Returned as Undeliverable. Summons and Complaint sent to Virginia Robinson returned with the notation: 'unclaimed.'"
• September 21, 2009: The parties, including counsel for Robinson, participated in a planning meeting, pursuant to Fed.R.Civ.P. 26(f).
• September 24, 2009: The court issued a scheduling order, providing defendants until June 21, 2010, to file motions to amend the pleadings and to add parties.
• October 15, 2009: Robinson filed the instant motion to dismiss for failure to serve her with process within the 120-day period provided by Fed.R.Civ.P. 4(m).
• October 16, 2009: The court set the motion to dismiss for submission, without oral argument, on October 30, 2009.
• October 30, 2009: The Missildines requested additional time — until November 3 — to respond to Robinson's motion to dismiss. They explained that, among other things, "the brief extension would allow time to discuss the attempts at personal service made by the investigator employed by . . . [their] counsel." Mot. at 1 (Doc. No. 43).
• November 3, 2009: The Missildines personally served Robinson with a summons and complaint.
II. DISCUSSION
A plaintiff must serve process on a defendant "within 120 days after the complaint is filed." Fed.R.Civ.P. 4(m). If she fails to do so, "the court — on motion or on its own after notice to the defendant — must dismiss the action without prejudice against the defendant or order that service be made within a specified time." Id. The Missildines do not dispute that they failed to serve Robinson within the 120-day period. Rather, they move the court to grant additional time to serve Robinson, so as to make effective their November 3 service of process.
"[I]f the plaintiff shows good cause for the failure [to serve within 120 days of filing a complaint], the court must extend the time for service for an appropriate period." Fed.R.Civ.P. 4(m). The good-cause standard can be difficult to meet, as it "exists 'only when some outside factor[,] such as reliance on faulty advice, rather than inadvertence or negligence, prevented service.'" Lepone-Dempsey v. Carroll County Comm'rs, 476 F.3d 1277, 1281 (11th Cir. 2007) (citation omitted) (alteration in original). But, "[e]ven in the absence of good cause, a district court has the discretion to extend the time for service of process." Id. Indeed, the Eleventh Circuit Court of Appeals has held that, "when a district court finds that a plaintiff fails to show good cause[,] . . . the district court must still consider whether any other circumstances warrant an extension of time based on the facts of the case." Id. at 1282. "Only after considering whether any such factors exist may the district court exercise its discretion and either dismiss the case without prejudice or direct that service be effected within a specified time." Id.
The Missildines offer several reasons for their failure timely to serve Robinson. Although none of these reasons amounts to good cause, they are sufficient to warrant the extension necessary to make effective the November 3 service of Robinson.
The Missildines' failure to serve Robinson within the 120-day period was caused by a not-uncommon problem: they simply had an incorrect address. Unfortunately, their attempt at service was not returned as undeliverable until more than a month after it was mailed. To be sure, the Missildines could perhaps have avoided this problem by attempting to serve Robinson soon after filing their complaint; instead, they waited approximately three months. Their delay, however, has not gone unexplained. They maintain that from the time they filed their complaint "until approximately late-July, 2009, [their] counsel . . . was engaged in a good faith discussion of this case with a representative of the defendants' insurance company . . . [a]nd, by agreement, [they] did not attempt service on any defendant while those discussions evolved." Pl.'s Resp. at 1 (Doc. No. 47).
Following notice that their first attempt at service had failed, the Missildines did not simply give up on serving Robinson. Rather, they ultimately employed an investigator to locate and serve her.
It is also noteworthy that Robinson has failed to identify any specific prejudice caused by the delay in service. In fact, Robinson filed an answer to the Missildines' complaint on September 8 and her counsel participated in the Rule 26(f) planning meeting on September 21.
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For the foregoing reasons, it is ORDERED as follows:(1) Defendant Virginia Robinson's motion to dismiss (doc. no. 40) is denied.
(2) Plaintiffs Shiloh Missildine and Ashley Barlett Missildine are granted an enlargement of time, until November 3, 2009, to serve a summons and complaint on defendant Virginia Robinson.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST 1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4 Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).