United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES, District Judge.
Before the Court is the defendant's motion to dismiss for insufficiency of service. Docket No. 12. The plaintiff has not responded. After considering the record, arguments, and applicable law, the motion will be granted.
I. Factual and Procedural History
Jennifer May filed this employment discrimination suit in October 2011. Docket No. 1. She claimed that while working at the University of Mississippi Medical Center (UMC) she was subject to discrimination, harassment, and retaliation which resulted in her termination in February 2010. Id. May's simultaneously-filed motion for leave to proceed in forma pauperis was granted the following month. Docket Nos. 2-3.
In October 2013 - 23 months later - the Magistrate Judge saw that nothing had happened in the case. He issued the following Text Order:
My staff is directed to send another copy of the Order at Docket No. 3 to Plaintiff. Furthermore, the Clerk of Court is directed to mail to Plaintiff the appropriate summons forms as directed in the Order at Docket No. 3 and make an appropriate notation on the docket when the summons forms are sent.
Text Order of Oct. 9, 2013. The Clerk sent the summons forms and made the appropriate notation on the Court's electronic docket sheet.
Unfortunately, nothing happened in the case for another 12 months. The Magistrate Judge therefore issued an Order directing May to explain why service had not been effected within the 120-day period provided by Federal Rule of Civil Procedure 4(m). Docket No. 4. May responded with an apology and explanation: severe medical issues had prevented her from concentrating on this suit and other matters "for a lengthy period of time, " she said. Docket No. 5. She was "at a stable period right now, " though, and wanted to proceed with the case. Id.
The Magistrate Judge found that May's explanation failed to meet the "good cause" standard. Docket No. 6, at 2. "In an abundance of caution, " though, he gave May an extension of time to fill out the summons form, and instructed May on how to proceed with service. Id. at 3.
May returned a completed summons form on either December 9 or 10, 2014; the record is not clear. Docket No. 7. The United States Marshal's Service served it on the Mississippi Attorney General's Office on January 12, 2015. Docket No. 8.
This motion followed. In it, UMC argues that dismissal is appropriate because May lacks good cause for an extension of time in which to complete service, among other reasons. Docket No. 13.
II. Legal Standard
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. If, however, the plaintiff can establish good cause for failing to serve the defendant, the court must extend the time for service. Even if the plaintiff lacks good cause, the court has discretionary power to extend the time for service. 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....
[W]here the applicable statute of limitations likely bars future litigation, a district court's dismissal of claims under Rule 4(m) should be reviewed under the same heightened standard used to review a dismissal with prejudice.... A district court's dismissal with prejudice is warranted only where a clear record of delay or contumacious conduct by the plaintiff exists and a lesser sanction would not better serve the interests of justice. Additionally, where this Court has affirmed dismissals with prejudice, it has generally found at least one of three aggravating factors: ...