United States District Court, E.D. Tennessee, Knoxville Division
CONSTANCE M. EVERY, Plaintiff,
MEGAN J. BRENNAN, Postmaster General et. al., Defendant.
W. Phillips United States District Judge
matter is before the Court on Plaintiff's Motion for
Leave to File Amended Complaint [doc. 30], the United
States' Response in Opposition [doc. 32], Plaintiff's
Reply [doc. 33], and the United States' Motion for
Permission to File a Surreply [doc. 34]. For the reasons
herein, the Court will grant Plaintiff's motion and deny
the United States' motion.
pro se plaintiff, Constance M. Every (“Ms.
Every”) brought this suit against the United States
Postmaster General and other federal employees, claiming they
violated the “No Fear Act, ” the “Whistle
Blower Act, ” and “EEO Acts/Rights” by
harassing her, targeting her, discriminating against her,
retaliating against her, and otherwise disparately treating
her until her termination in 2016. [Compl., doc. 1, at 3-4].
The United States moved for judgment on the pleadings, [Mot.
J. Pleadings, doc. 19], after which Ms. Every requested time
to retain counsel, [Mot. Extension, doc. 21]. Since then, Ms.
Every has retained counsel, who later moved for leave to file
an amended complaint. [Mot. Leave, doc. 30]. In the Amended
Complaint [doc. 30-2], Ms. Every alleges numerous claims for
relief, including a violation of Title VII of the Civil
Rights Act of 1964, a violation of her right to free speech
under the First Amendment, a violation of her right to due
process under the Fourteenth Amendment, a violation of the
Tennessee Public Protection Act, negligent infliction of
emotional distress, and intentional infliction of emotional
distress. [Id. at 8-10]. The United States opposes
Ms. Every's request to amend her Complaint, maintaining
that the proposed amendments are futile and will cause
substantial prejudice to the United States. [Resp. at 1-10].
Federal Rule of Civil Procedure 15
Rule of Civil Procedure 15(a)(2) states that if a party can
no longer amend its pleading as a matter of course, it may do
so “only with the opposing party's written consent
or the court's leave.” Rule 15(a)(2)
“embodies a ‘liberal amendment policy,
'” requiring courts to “freely give leave
when justice so requires.” Brown v. Chapman,
814 F.3d 436, 442-43 (6th Cir. 2016) (quotation omitted). To
determine whether to grant leave under this liberal policy,
courts weigh several factors: “[u]ndue delay in filing,
lack of notice to the opposing party, bad faith by the moving
party, repeated failure to cure deficiencies by previous
amendments, undue prejudice to the opposing party, and
futility of amendment.” Wade v. Knoxville Utils.
Bd., 259 F.3d 452, 458-59 (6th Cir. 2001) (quotation
omitted). “A motion for leave to amend may be denied
for futility ‘if the court concludes that the pleading
as amended could not withstand a motion to dismiss.”
Midkiff v. Adams Cty. Reg'l Water Dist., 409
F.3d 758, 767 (6th Cir. 2005) (quotation omitted).
arguing that Ms. Every's proposed amendment is futile,
the United States asserts that Ms. Every has sued improper
parties, that the statute of limitations bars her claims,
that she has not exhausted her administrative remedies, that
her claims are not cognizable under state law, and that her
jury demand is untimely. [Resp. at 3-9]. The United States,
however, raises “no objection” to Ms. Every's
general allegations-paragraphs eleven through thirty-nine.
[Id. at 9]. To establish that an amended pleading is
futile, a defendant has to show that none of the
allegations in the amended pleading can measure up to a
plausible claim. See Synthes USA Sales, Inc. v.
Taylor, No. 3:10-1102, 2012 WL 928190, at *3 (M.D. Tenn.
Mar. 19, 2012) (“[W]hether an amended [complaint] is
futile depends upon whether the complaint states any
claim that entitles the pleader to relief.” (citations
omitted)); see also Optigen, LLC v. Int'l Genetics,
Inc., 777 F.Supp.2d 390, 399 (N.D.N.Y. 2011)
(“With regard to the futility prong, ‘the
proposed amended complaint [need only be] sufficient as to
some claims' for the request to not be futile.”
(quoting Kassner v. 2nd Ave. Delicatessen Inc., 496
F.3d 229, 244 (2d Cir. 2007))).
declining to address whether Ms. Every's general
allegations are factually insufficient-particularly in light
of the fact that Ms. Every expressly incorporates them into
her claims as fortification, [Am. Compl. ¶ 39]-the
United States does not convince the Court that none
of those claims can withstand dismissal. Also, along these
same lines, the United States appears to concede that at
least some of Ms. Every's claims concerning the
Postmaster General are plausible. The United States mentions
here that it previously moved for judgment on the pleadings
only as to “the individual defendants”
and “argued that the case [may] continue only as to
the Postmaster General.” [Resp. at 3]. Ms. Every renews
her claims against the Postmaster General in her Amended
Complaint, and because the United States now appears to
reiterate its prior position that those claims are plausible,
the Court will not reject her Amended Complaint as futile.
See Synthes USA Sales, 2012 WL 928190 at *3;
Optigen, 777 F.Supp.2d at 399.
substantial prejudice, the United States asserts that
“there is prejudice to the individual defendants since
they were not personally served with the original
complaint” under Federal Rule of Civil Procedure 4.
[Resp. at 5]. Rule 4 of course requires a plaintiff to serve
a defendant within ninety days after filing a complaint.
Fed.R.Civ.P. 4(m). A prerequisite to a court's ability to
exercise personal jurisdiction over a defendant, King v.
Taylor, 694 F.3d 650, 655 (6th Cir. 2012), proper
service under Rule 4 is a requirement that applies in equal
force to a pro se plaintiff-a title belonging to Ms. Every
when she initiated this action, see Durham v. Mohr,
No. 2:14-cv-581, 2015 WL 5244464, at *7-8 (S.D. Ohio Sept. 9,
2015); cf. Reed-Bey v. Pramstaller, 607 F. App'x
445, 450 (6th Cir. 2015). Still, the Court “must take
into consideration the difficulties an individual faces in
bringing . . . [a] case without the benefit of legal
representation.” Kozak v. Lake State Ry. Co.,
No. 09-CV-14695, 2010 WL 2573370, at *1 (E.D. Mich. May 24,
2010); see Habib v. Gen. Motors Corp., 15 F.3d 72,
74 (6th Cir. 1994) (“[Rule 4(m)] must be construed
leniently with regard to pro se litigants[.]”)
(citations omitted)); Abdullah v. Duncan, No.
3:12-cv-01285, 2014 WL 1091935, at *1 (M.D. Tenn. Mar. 19,
2014) (acknowledging that the court offered “temporal
leeway and specific and directed advice to the pro
se plaintiff regarding service of process”
(footnote omitted)). In this vein, if a pro se plaintiff is
unsuccessful in effecting proper service but can demonstrate
“good cause for the failure, ” then that failure
is not incurable. Fed.R.Civ.P. 4(m).
Court notes that Ms. Every did at least attempt to execute
proper service of process under Rule 4(m)-having sent, by
certified mail, copies of the Complaint to each individual
defendant, [see Process Receipts & Returns,
docs. 4-10]-though she mailed them only to regional post
offices and not the United States Attorney General's
Office or the United States Attorney's Office,
see Fed. R. Civ. P. (i)(1)-(3). Her attempt at
service is reasonable and diligent for a pro se plaintiff
and, though flawed, see id., is excusable under Rule
4(m), see Habib, 15 F.3d at 75 (holding that
although a pro se plaintiff did not meet Rule 4(m)'s
deadline, his reasonable, good-faith effort to meet the
deadline sufficed to excuse tardy service). Under these
circumstances, the Court is satisfied that Ms. Every has
answered Rule 4(m)'s call for good cause, and the Court
can discern no prejudice that has befallen the United States,
much less substantial prejudice.
United States, in fact, cites no precedent for its contention
that a pro se plaintiff's failure to serve an original
complaint, despite a reasonable attempt to do so at the
outset, results in substantial prejudice and requires the
Court to deny leave to amend under Rule 15(a)(2)'s
liberal amendment policy. See E.D. Tenn. L.R. 7.1(b)
(stating that a movant must cite “legal grounds which
justify the ruling sought from the Court”). While a
plaintiff's faulty attempt at service, even when
reasonable, cannot serve as a substitute for proper
service, see Ecclesiastical Order of the ISM of AM, Inc.
v. Chasin, 845 F.2d 113, 116 (6th Cir. 1988) (stating
that proper service is indispensable even if a defendant
already has actual notice of the lawsuit), it can create
leeway for a second opportunity to achieve proper service,
see Fed. R. Civ. P. 4(m) (“[I]f the plaintiff
shows good cause for the failure, the court must extend the
time for service for an appropriate period.”). Ms.
Every is entitled to that leeway in light of her reasonable,
diligent attempt to execute service, which, again, is
sufficient for a showing of good cause under Rule 4(m). The
Court will therefore grant her leave to file her Amended
Complaint, but she must also execute proper service as to her
original Complaint. The Court will deny the United
States' Motion for Judgment on the Pleadings as moot.
See In re Refrigerant Compressors Antitrust Litig.,
731 F.3d 586, 589 (6th Cir. 2013) (“An amended
complaint supersedes an earlier complaint for all
purposes.” (citation omitted)); Ky. Press
Ass'n, Inc. v. Kentucky, 355 F.Supp.2d 853, 857
(E.D. Ky. 2005) (“Plaintiff's amended complaint
supercedes the original complaint, thus making the motion to
dismiss the original complaint moot.”) (citing
Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299,
306 (6th Cir. 2000))).
Every's request for leave to amend her Complaint is
neither futile nor unduly prejudicial to the United States.
Rule 15(a)(2)'s liberal amendment policy therefore favors
the granting of her request. Ms. Every's Motion for Leave