United States District Court, S.D. Mississippi, Southern Division
ORDER DENYING DEFENDANT MARIO HILL'S AMENDED
MOTION TO DISMISS 
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT is Defendant Mario Hill's Amended Motion to
Dismiss  the claims asserted by Plaintiffs Li'Trendia
West and Charmaine Hartfield in their Amended Complaint 
for failure to timely perfect service of process. This Motion
is fully briefed. For the reasons that follow, the Court
finds that Defendant's Amended Motion is not well taken
and should be denied.
case arises out of an incident which allegedly occurred on
June 8, 2014. Plaintiffs Li'Trendia West
(“West”) and Charmaine Hartfield
(“Hartfield”) (jointly, “Plaintiffs”)
allege in their Amended Complaint  that they were
subjected to “violent and abusive conduct” by
Defendant Mario Hill (“Defendant Hill”) due to
Defendant City of Gulfport's (the “City”)
failure to “adopt and implement policies and
procedures” to prevent such conduct. Am. Compl.  at
they claim that after they called the Gulfport Police
Department to report a disturbance at a business on Beach
Boulevard in Gulfport, Mississippi, Defendant Hill, a police
officer with the Gulfport, Mississippi, Police Department,
responded and offered to drive them back to their hotel room.
Id. at 2. Instead, Defendant Hill parked on a dark
street, ordered West out of the patrol car, and then exposed
himself, groped West, and sexually propositioned her.
Id. Plaintiffs further claim that Defendant Hill
exposed himself to Hartfield suggesting that she “touch
it” while otherwise sexually propositioning her.
Id. Plaintiffs advance 42 U.S.C. § 1983 claims
against Defendant Hill for actions taken “under the
color of state law, ” and against the City for its
deliberate indifference in failing “to investigate,
train, supervise and discipline Defendant Hill” and in
failing to adopt adequate policies and procedures that would
have prevented Defendant Hill's conduct. Id. at
February 20, 2017, Defendant Hill filed his Amended Motion to
Dismiss  arguing that Plaintiffs failed to timely effect
service of process upon him. Am. Mot.  at
Defendant Hill asserts that dismissal is required
“pursuant to the provisions of Rule 4(m), 12(b)(2),
12(b)(5) and 41(b) of the Federal Rules of Civil
Procedure.” Am. Mot.  at 2. Plaintiffs respond that
a court has broad authority under Rule 4(m) to extend the
time for service “regardless of a showing of good
cause, ” citing Thompson v. Brown, 91 F.3d 20,
21 (5th Cir. 1996). Mem. in Opp'n  at 1-3.
Federal Rule of Civil Procedure 4(m) standard
4(m) provides in relevant part that
[i]f a defendant is not served within 90 days after the
complaint is filed, the court - on motion or on its own after
notice to the plaintiff - must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
United States Court of Appeals for the Fifth Circuit has held
that under Rule 4(m) a trial court “must” grant
an extension of time to serve process if a plaintiff
establishes good cause for failure to serve, and may, in its
discretion, grant additional time absent a showing of good
cause. Millan v. USAA General Indemnity
Co., 546 F.3d 321, 325 (5th Cir. 2008).
proper service, a party may enter a general appearance and
thereby waive the affirmative defenses of insufficient
service of process under Rule 12(b)(5) and lack of personal
jurisdiction under Rule 12(b)(2). Fed R. Civ. P. 12(b)(5).
Defendant Hill was properly served, albeit untimely, but
his Amended Motion to Dismiss  should be denied.
Hill appears to concede that he was properly served, albeit
untimely, with the Summons and Amended Complaint on January
24, 2017. Am. Mot.  at 1. Defendant Hill's ...