United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY, UNITED STATES
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.
LAW AND ANALYSIS
Motions to Dismiss Under Fed.R.Civ.P. 12(b)(4) and
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).
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'”).
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.
Process and Service of Process in This Case
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).
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
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).
Motions to Dismiss Under ...