Opinion
Cause No. IP99-1960-C-T/G
October 5, 2000
ENTRY ON DEFENDANT'S MOTION TO DISMISS COMPLAINT WITHOUT PREJUDICE
Plaintiff, Rebecca Oliver, alleges that Defendant, Cassidy Restaurant, Inc. ("Cassidy"), wrongful discriminated against her in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. Cassidy moved for dismissal of Ms. Oliver's Complaint pursuant to Rule 4(m) of the Federal Rules of Civil Procedure on the ground that Ms. Oliver did not achieve sufficient service of process. For the reasons stated below, Cassidy's motion is DENIED.
I. Background
Ms. Oliver was employed from August 1994, until May 1996 at a McDonald's restaurant owned by Cassidy. Sometime thereafter she filed a claim with the Equal Employment Opportunity Commission and, on September 29, 1999, received her dismissal and notice of right to sue in the United States District Court.
On December 29, 1999, Ms. Oliver filed the present suit alleging that Cassidy violated the ADA. Ms. Oliver's Complaint alleges that Cassidy discriminated against her by refusing to schedule her for work, or fire her, for a three-month period during which she was suffering from a broken patella (knee), even though a doctor had cleared her for light duty work. Ms. Oliver further alleges that Cassidy refused to make reasonable accommodations for her known physical limitation of plantar myofascitis and refused to promote her, after promising to do so, upon the discovery of her disabilities.
After filing her Complaint, Ms. Oliver had 120 days to serve process on Cassidy. Ms. Oliver failed to do so. On May 15, 2000, this court ordered Ms. Oliver to show cause "why this cause of action should not be dismissed for failure of the Plaintiff to serve Defendant, pursuant to Rule 4(m)[.]" Ms. Oliver, surprisingly, did not respond to the court's order. Instead, Ms. Oliver's counsel caused the Clerk of this court to issue a new Summons to Cassidy, dated May 18, 2000, which Cassidy received, along with the Complaint, on May 18, 2000, some 141 days after the Complaint was filed.
Ms. Oliver in her Statement in Response to Order to Show Cause, writes, "Plaintiff's Counsel was notified that service on Cassidy Restaurant, Inc. was completed on May 30, 2000 by receiving the return receipt of the certified mailing." (Pl.'s Statement in Resp. to Order to Show Cause at 2.) Cassidy in its Brief in Support of its motion to dismiss, writes that it "received a summons and Complaint on May 18, 2000[.]" (Br. in Supp. at 2.) Because Cassidy does not argue that service of process was completed on any date after May 18, 2000, this court assumes that service was complete on May 18, 2000.
Subsequent to Cassidy's receipt of the Summons and Complaint, this court, on June 6, 2000, issued a Second Order to Show Cause why the case should not be dismissed or, in the alternative, why the period for service should be extended. Ms. Oliver responded to the court's order on June 13, 2000. Thereafter, Cassidy moved to dismiss this case without prejudice on the ground that Ms. Oliver failed to effect service of process as mandated under Rule 4(m).
II. Discussion
Rule 4(m) requires service of process to be effected upon the defendant within 120 days after the filing of the plaintiff's complaint. See Fed.R.Civ.P. 4(m). However, Rule 4(m) contains a provision that affords the plaintiff the opportunity to seek an extension of time allowed for service of process if the plaintiff can show good cause why such service was not completed within the 120 day time limit prescribed by the rule. See id.
Furthermore, the rule empowers the court, in its discretion, to extend the time allowed for service of process even if the plaintiff is unable to show good cause. See id.; Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996) ("If . . . good cause does not exist, the court may, in its discretion, either dismiss the action without prejudice or direct that service be effected within a specified time.") (citations omitted).
A. Good Cause
Ms. Oliver, in her Statement in Response to Order to Show Cause, conveyed that on December 30, 1999, she attempted to serve Cassidy through its Registered Agent, Gerald J. Cassidy, at his last known address. However, in early January 2000, the Summons and Complaint were returned to Ms. Oliver's counsel, stamped "Return to Writer, Not Deliverable as Addressed; No Forwarding Address on File." (Pl.'s Statement in Resp. to Order to Show Cause at 1.) On January 5, 2000, Ms. Oliver attempted to serve opposing counsel on her Workers' Compensation claim; service was not accepted.
During February, March, April and May, the law firm representing Ms. Oliver "underwent several changes in personnel, including the loss of a number of attorneys and support staff, including one of the attorneys involved in this case. Due to this reorganization . . ., Plaintiff's Counsel was confronted with additional cases pending in several courts which greatly congested his schedule, and in the process of reshuffling of case loads, the fact that there was no service on Ms. Oliver's complaint was inadvertently overlooked[.]" (Id. at 2).
Ms. Oliver counsel's has failed to show good cause why this case should not be dismissed. Employee turnover and a busy schedule are not the making of good cause.
Moreover, Ms. Oliver's futile attempt to effect service of process does not excuse months of apparent non-activity. As the Seventh Circuit has stated, such behavior is the "opposite of good cause." Powell v. Starwalt, 866 F.2d 964, 965 (7th Cir. 1989) (finding that plaintiff's lawyer "was asleep at the switch, the opposite of good cause") (citations omitted).
B. Judicial Discretion
The court may, in its discretion, extend the time allowed for service of process despite Ms. Oliver's failure to show good cause. See Panaras, 94 F.3d at 340.
In the end, if dismissal is ordered Ms. Oliver will suffer by the fault of her counsel, and she has no control over her counsel's difficulty in completing service of process.
If Cassidy's motion were allowed, Ms. Oliver would not be able to re-file this lawsuit due to the expiration of the statute of limitations. Ms. Oliver had 90 days from the date of receipt of the EEOC notice of right to sue, which was dated September 29, 1999, to file a lawsuit based on federal law. After that period had expired, her right to sue based on the charge presented to the EEOC was lost.
There is no hint that Ms. Oliver did anything to delay the service of process, nor is there anything to indicate that she has benefitted from this delay. Further, it is extremely doubtful that Cassidy has suffered a harm as a result of being served with process 21 days after the time allotted for service of process by Rule 4(m) had expired.
Cassidy claims that Ms. Oliver's "prolonged inactivity has limited the chances of effective discovery and factual determination and impaired Cassidy's ability to adequately present its defense." (Br. in Supp. at 3.) Cassidy points out that "the factual events of Oliver's claim took place over four years ago" and "a high employee turnover has sprinkled abroad those persons eligible to testify as witnesses." (Id.) Cassidy further indicates that because it is no longer associated with McDonald's, its accessibility to relevant documentation will be limited. These reasons, however, do not support Cassidy's argument that it will be greatly harmed, as a result of the delay, if this case is not dismissed. Ms. Oliver was employed at McDonald's from August 1994, through May 1996, and as Cassidy points out, the events giving rise to this claim occurred over four years ago. The delay that is the cause of this motion is merely 21 days. Although Cassidy was not served until May 18, 2000, as a matter of right, Ms. Oliver had until April 27, 2000, to effect service. While Cassidy may be harmed by the amount of time it has taken from the period during which these events occurred to bring this suit, it is unlikely that an additional 21 days allowed for service of process will harm Cassidy in any manner. It is highly unlikely that the additional 21 days will have any effect whatsoever on discovery or at all "impair Cassidy's ability to present its defense." (Id.).
Of course, this ruling can be reconsidered if Cassidy can show that it suffered prejudice as a result of the additional 21 days being allowed for Ms. Oliver to effect service of process.
This is not a case in which Ms. Oliver should be punished because of the failure of her counsel. Furthermore, Cassidy will not suffer harm by the extension of the period of service to include May 18, 2000. Therefore, this court will exercise its discretion and extend the period for service to include the date that service was accomplished in this case.
For the foregoing reasons, Cassidy Restaurant, Inc.'s, motion to dismiss is DENIED.
ALL OF WHICH IS ORDERED this 5th day of October 2000.