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Sample v. Holmes County

United States District Court, Fifth Circuit

August 28, 2013

LIZA SAMPLE, Plaintiff,


CARLTON W. REEVES, District Judge.

Before the Court is Defendant Holmes County, Mississippi's and Defendant Holmes-Humphreys Regional Correctional Facility's (collectively, "the Defendants") motion to dismiss, pursuant to Federal Rule of Civil Procedure 4(m). Docket No. 8. The Plaintiff opposes the motion. Docket No. 10. The Defendants have filed a rebuttal brief, Docket No. 12. The Court held a hearing on the motion on August 9, 2013. Upon careful consideration of the parties' briefs and arguments, the motion to dismiss is DENIED.


Plaintiff Liza Sample ("Sample") filed her complaint on May 2, 2012. Sample alleges that the Defendants, her former employers, violated the Americans with Disabilities Act ("ADA") by discriminating against her on the basis of her disability.[1] Sample alleges that she filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on May 1, 2010, and that she filed this lawsuit within 90 days of receiving the EEOC's Right to Sue letter. Id. ¶¶ 19-20. Through this action, Sample seeks all damages to which she is entitled under the ADA and any other relief deemed equitable by this Court. Id. ¶¶ 22-23.

Sample failed to serve process on the Defendants within the 120-day period provided by Rule 4(m). The deadline passed on August 30, 2012. Through counsel, she requested an extension until September 30, 2012, or ten days after any order granting the motion was signed, whichever was later. Docket No. 4. Magistrate Judge F. Keith Ball granted Sample's motion on October 11, 2012, and gave Sample until October 22, 2012, to serve the Defendants. Docket No. 5.[2]

On October 18, Plaintiff attempted to serve process on Holmes County, Mississippi. The summons indicates that it was issued for "Holmes County, Mississippi d/b/a Holmes/Humphreys Regional Correctional Facility in care of Holmes County Board of Supervisors." Docket No. 7, at 1. The summons was served on "Charlie Lucket" at the "Holmes County Chancery Clerk." Id. at 2. The Defendants state that the person served was Charlie Luckett, the wife of the Holmes County chancery clerk. Docket No. 12, at 2. The summons indicates that Charlie Luckett was "designated by law to accept service of process on behalf of Holmes County, Mississippi." Id. [3]

The Defendants have moved to dismiss the complaint for failure to timely serve process. The Defendants' initial motion argues that the magistrate judge improperly granted Sample's motion for an extension of time under Rule 4(m). The Defendants contend that Sample's failure to serve process within 120 days cannot be excused because she did not demonstrate "good cause" supporting her motion for an extension of time. On rebuttal, the Defendants presented a new ground for dismissal, claiming that they have not been properly served. The Court will address each of these arguments in turn.


The burden rests on the plaintiff to ensure that defendants are properly served with summons and a copy of the complaint. Fed.R.Civ.P. 4(c)(1).

Rule 4(m) permits a district court to dismiss a case without prejudice if the plaintiff fails to serve the defendant within 120 days of filing the complaint. Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996). If, however, the plaintiff can establish good cause for failing to serve the defendant, the court must extend the time for service. Id. Even if the plaintiff lacks good cause, the court has discretionary power to extend the time for service. Id. A discretionary extension may be warranted, "for example, if the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or conceals a defect in attempted service." Fed.R.Civ.P. 4(m) advisory committee's note (1993).

Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 325 (5th Cir. 2008) (emphasis added).


A. Granting Extension of Time

The threshold issue in this case is whether the magistrate judge had the discretionary authority to grant an extension of time to serve process. The Defendants' argument in its initial motion to dismiss fails to provide the Court with a compelling reason to disturb the magistrate judge's ruling. The question of whether Sample's motion demonstrated good cause would ...

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