United States District Court, Eastern District of Tennessee, Knoxville
Thomas A. Varlan, CHIEF UNITED STATES DISTRICT JUDGE
This civil action is before the Court on Defendants’ Motion to Dismiss [Doc. 7]. Defendants move the Court to dismiss this case, in which plaintiff seeks relief against defendants for their alleged discriminatory employment actions and retaliation against her on account of her race, gender, and age, pursuant to Title VII of the Civil Rights Act of 1964 (“Civil Rights Act”) and the Age Discrimination in Employment Act (“ADEA”). As grounds for their motion, defendants argue that plaintiff has failed to prosecute her case, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure; failed to effect service of process within 120 days of filing her complaint, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure; and failed to state a claim for relief, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Plaintiff has responded in opposition to the Motion to Dismiss [Doc. 12]. As part of her response, plaintiff attached three documents related to prior filings that the parties made with the Equal Employment Opportunity Commission (“EEOC”) regarding this case [Doc. 12-1; Doc. 12-2; Doc. 12-3]. Defendants have replied to plaintiff’s response [Doc. 14]. On the same day that defendants filed their reply memorandum, they also filed a motion to exclude matters outside of the pleadings [Doc. 13], in which they argue that the Court should not consider the three documents that plaintiff attached to her response to the Motion to Dismiss. Plaintiff has not responded to defendants’ motion to exclude.
Each defendant has since filed a motion for summary judgment, seeking dismissal of plaintiff’s action without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, or judgment as a matter of law pursuant to Rule 56 of the Federal Rules of Civil Procedure [Doc. 20; Doc. 22]. Neither motion for summary judgment is currently ripe for disposition. For the reasons that follow, the Court will grant defendants’ Motion to Dismiss pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Accordingly, the Court will dismiss plaintiff’s action without prejudice and deny all other pending motions as moot.
Plaintiff filed this action on April 5, 2013 [Doc. 1]. Plaintiff alleges that defendant Bechtel Jacobs Co. discriminated against her on the basis of race, gender, and age when it terminated her employment as a Project Controls Engineer II, and that defendant URS/CH2M Oak Ridge discriminated against her on those same bases when it failed to hire her [Doc. 1 p. 3–7]. Plaintiff also alleges that both defendants retaliated against her “for her EEO activities and/or opposition to discriminatory practices” [Doc. 1 p. 5–6].
On April 8, 2013, the Clerk of Court made an entry on the docket sheet through the Court’s CM/ECF system, stating, “No summons received with initiating documents. Therefore, summons not issued as to Bechtel Jacobs Co., LLC and URS/CH2M Oak Ridge.” The electronic receipt for the entry reflects that notice of the entry was given to plaintiff’s counsel of record via email.
No additional activity occurred in the case for more than one year. On May 6, 2014, the Court issued an order for plaintiff to show cause why her case should not be dismissed for failure to prosecute [Doc. 2]. The order to show cause directed plaintiff to respond within twenty-one days. Prior to the response deadline, plaintiff’s counsel contacted the Court’s judicial assistant to explain that plaintiff needed several additional days to file a response [Doc. 12 p. 3].
On May 30, 2014, plaintiff responded to the order to show cause [Doc. 5]. In it, her counsel stated:
The lack of service of process on the defendants and activity in this case results entirely from plaintiff’s counsel’s erroneous belief that he had, in fact, served them. He has had discussions with counsel for the defendants following termination of the EEOC proceedings and initiation of this action concerning the settlement of the plaintiff’s discrimination charges. He understood that the defendants had been served with process and clearly was mistaken about that. In fact, summonses had not even been issued.
[Id. at p. 1]. On the same day that she filed her response to the order to show cause, plaintiff requested that the relevant summonses be issued [Doc. 3]. The Clerk of Court issued the summonses [Doc. 4], and plaintiff served defendants with process on June 4, 2014 [Doc. 6].
Defendants’ Motion to Dismiss followed on June 25, 2014 [Doc. 7]. Defendants dispute the representations of plaintiff’s counsel insofar as “there have not been any such settlement discussions between Plaintiff’s counsel and ‘counsel for the defendants’ (or Defendants themselves)” [Doc. 8 p. 4]. Plaintiff has not addressed this assertion by defendants.
Rule 4(m) of the Federal Rules of Civil Procedure provides, in relevant part:
If a defendant is not served within 120 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 ...