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Shelby v. PeopleReady

United States District Court, M.D. Tennessee, Nashville Division

June 4, 2019

KUNITA SHELBY, Plaintiff,
v.
PEOPLEREADY, Defendant.

          Campbell Judge.

          REPORT AND RECOMMENDATION

          JEFFERY S. FRENSLEY, UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         In this action brought under Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991, Kunita Shelby alleges that her former employer, PeopleReady, Inc., violated her civil rights by terminating her employment and retaliating against her. Docket No. 1, p. 1-3. The matter is now before the Court upon a Motion to Dismiss filed by PeopleReady. Docket No. 11. PeopleReady has also filed a Supporting Memorandum of Law. Docket No. 12. Ms. Shelby has filed a document that the Court will construe as a Response. Docket No. 15. PeopleReady has filed a document styled as a “Supplemental Memorandum in Further Support of its Motion to Dismiss Plaintiff's Complaint” that the Court will construe as a Reply. Docket No. 16. Ms. Shelby filed a further document that the Court is not able to construe as a proper filing related to this Motion, and will therefore disregard. Docket No. 17. For the reasons set forth below, the undersigned recommends that PeopleReady's Motion be GRANTED.

         II. LAW AND ANALYSIS

         A. Motions to Dismiss Under Fed.R.Civ.P. 12(b)(4) and 12(b)(5)

         Rules 12(b)(4) and 12(b)(5) of the Federal Rules of Civil Procedure list two of the defenses that may be asserted in a motion: insufficient process - 12(b)(4), and insufficient service of process - 12(b)(5). “Courts generally treat Rule 12(b)(4) and (5) as more or less interchangeable.” Moore's Federal Practice, § 12.33(1) (Matthew Bender 3d Ed.) Rule 12(b)(4) challenges the form of process, whereas Rule 12(b)(5) challenges the method of serving process. Id. “[T]he requirement of proper service of process is not some mindless technicality.” Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991) (internal quotation marks and citation omitted). “[W]ithout proper service of process, consent, waiver, or forfeiture, a court may not exercise personal jurisdiction over a named defendant.” King v. Taylor, 694 F.3d 650, 655 (6th Cir. 2012). Citing Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350, 119 S.Ct. 1322 (1999). “Whether a defendant had notice of the legal action, despite lack of personal service, is immaterial.” Pendleton v. Williams, No. 3:12-cv-00376, 2013 U.S. Dist. LEXIS 81430 at *5, 2013 WL 2546684 (M.D. Tenn. June 10, 2013), quoting Harris v. City of Cleveland, 7 Fed.Appx. 452, 456 (6th Cir. 2001) (internal quotation marks and citation omitted).

         Rule 4 governs the summons to defendants, and provides that “[a] summons must be served with a copy of the complaint” within 90 days after the complaint is filed. Fed. R. Civ. P 4(c), 4(m). “But if the plaintiff shows good cause for the failure [to serve within 90 days of filing the complaint], the court must extend the time for service for an appropriate period.” Fed.R.Civ.P. 4(m). Rule 4(m) therefore directs a two-part analysis. First, if the plaintiff has shown good cause for failure to serve in a timely manner, then “the court must extend the time for service for an appropriate period.” Fed.R.Civ.P. 4(m); Friedman, 929 F.2d at 1156. Next, if the plaintiff has not shown good cause, “the Court must either (1) dismiss the action without prejudice, or (2) direct that service be effected within a specified time.” Overbay v. Israel, No. 2:16-CV-00337-TAV, 2017 U.S. Dist. LEXIS 56968 at *5 (E.D. Tenn. Mar. 24, 2017), citing Collett v. Kennedy, Kootnz & Farinash, No. 3:14-CV-552, 2015 U.S. Dist. LEXIS 157458 (E.D. Tenn. Aug. 14, 2015); Henderson v. United States, 517 U.S. 654, 663, 116 S.Ct. 1638 (1996) (“[C]ourts have been accorded discretion to enlarge the service of time period ‘even if there is no good cause shown'”).

         “When a plaintiff is granted leave to proceed in forma pauperis, the officers of the court shall issue and serve all process, and perform all duties in such cases.” Pendleton, 2013 U.S. Dist. LEXIS 81430 at *3, quoting Abel v. Harp, 122 Fed.Appx. 248, 251 (6th Cir. 2005) (internal quotation marks and alterations omitted). “Any failure by the court officials to effect service of process constitutes a showing of good cause under Fed.R.Civ.P. 4.” Id. (internal quotation marks and citations omitted); see also Olsen v. Mapes, 333 F.3d 1199, 1204-05 (10th Cir. 2003) (in forma pauperis plaintiffs were not culpable for failure to timely serve when there was no evidence that they failed to cooperate with the Marshals Service). Nevertheless, at a minimum, a plaintiff should “request service upon the appropriate defendant and attempt to remedy any apparent service defects of which a plaintiff has knowledge.” Abel, 122 Fed.Appx. at 252.

         B. Process and Service of Process in This Case

         Ms. Shelby filed her Complaint on July 5, 2018. Docket No. 1. Later that same month, she applied for and was granted leave to proceed in forma pauperis. Docket Nos. 6, 7. The summons was issued as to PeopleReady and forwarded to the United States Marshal Service (“USM”) for service of process on July 27, 2018. Docket No. 8. The Court was later notified that it would be necessary for PeopleReady to be served personally by the USM in the state of Washington; therefore, the Court directed the USM to attempt personal service of process on PeopleReady at its address in Tacoma, Washington. Docket No. 9. Another summons was issued and forwarded to the USM on December 11, 2018. Docket No. 10. The summons was returned executed on February 27, 2019, indicating that PeopleReady had been served on February 7, 2019. Docket No. 13. It appears that PeopleReady was served with the first summons that the Court issued on July 27, 2018. Id. at 2. PeopleReady objects to both the content and the method of the service in this matter, arguing that Rule 12(b)(4) and 12(b)(5) have both been violated. Docket No. 12, p. 5-7. While PeopleReady acknowledges that it has received the Complaint and the original Summons, it contends that service is not proper unless it is served with “both an unexpired summons and the complaint.” Id. at 6, emphasis in original. Further, PeopleReady asserts that it was not served within the 90 day time period set forth in Rule 4(c) and (m). Id.

         While PeopleReady does appear to have been served with the summons that issued on July 27, 2018, rather than the one issued later on December 11, 2018, the two documents are otherwise entirely identical. Compare Docket No. 10, p. 2; Docket No. 13, p. 2. Further, PeopleReady does not point the Court to any authority for its proposition that the content of service is invalid if the Summons was issued some time before service is finally effected. The case that PeopleReady cites, Collins v. Waste Mgmt., simply states that “[b]oth federal law and Tennessee law require a summons to be served along with a copy of the complaint.” Id., quoting Collins v. Waste Mgmt., No. 17-2704-SHL-dkv, 2017 U.S. Dist. LEXIS 215320, 2017 WL 6947871, at *2 (W.D. Tenn. Dec. 22, 2017). PeopleReady has, by its own admission, received a summons and the Complaint. Id. at 6. Additionally, PeopleReady does not provide any evidence that the delay in service was due to any fault on the part of Ms. Shelby. Rather, the USM, whose responsibility it is to effect service in this in forma pauperis matter, required additional time to ascertain and effect the proper procedure for service in the state of Washington.

         In her response, Ms. Shelby addresses the issue as follows: “As far as the summons expiring please contact U.S. Marshalls [sic]. I turned in all of my documents in a timely manner.” Docket No. 15, p. 2. The Court finds that Ms. Shelby has shown good cause for her untimely service; namely, that the UMC did not complete service until February of 2019. Even if good cause were not shown, bearing in mind this Circuit's preference for adjudicating cases on their merits as well as the civil rights violation alleged, the Court would be inclined to recommend the exercise of discretion to allow the untimely service in this matter, where Ms. Shelby is proceeding in forma pauperis. The Court will therefore turn to the merits of PeopleReady's Motion to Dismiss under Rule 12(b)(6).

         C. Motions to Dismiss Under ...


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