United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES, UNITED STATES DISTRICT JUDGE
Onin Staffing and Yates Services ask the Court to dismiss pro
se Plaintiff Lee Taylor's Complaint for insufficient
process, insufficient service of process, and failure to
timely serve process. For the following reasons, the Court
denies Defendants' Motion.
starting point for this case is to remind the parties of what
this Court said in Howard v. Shelton, a
case not mentioned in the Defendants' briefs:
Rule 4 is a means to an end; it does not exist for its own
sake. Although its demands are specific, its ultimate goal is
simply to notify a defendant that a law suit has been filed
against it. And when a pro se plaintiff achieves
that goal despite failing to adhere to Rule 4's every
rigor, this Court will not favor dismissals based on simple
technicalities. The Rules of Civil procedure ‘should be
construed and administered to secure the just,
speedy and inexpensive determination of every action
and proceeding. In this case, that goal is best achieved by
permitting the parties to move forward toward an evaluation
of the case's merits.
277 F.R.D. 168, 172 (S.D.Miss. 2011) (citation omitted)
(emphasis in original).
undisputed that the initial set of summonses were defective
and that the first service on the Defendants was untimely.
Under Federal Rule of Civil Procedure 4(m), in such
circumstances the Court has the discretion to “dismiss
the action without prejudice . . . or order that service be
made within a specified time.” The Court must extend
the time for service, however, if the plaintiff shows good
cause. “Good cause” under Rule 4(m) requires
“at least as much as would be required to show
excusable neglect, as to which simple inadvertence or mistake
of counsel or ignorance of the rules usually does not
suffice.” Lambert v. United States, 44 F.3d
296, 299 (5th Cir.1995). Courts normally require “some
showing of good faith on the part of the party seeking an
enlargement and some reasonable basis for noncompliance
within the time specified.” Id.
the Court granted Taylor's motion to proceed in forma
pauperis on September 14, 2018, directed the Clerk of
Court to file Taylor's complaint, and explained that,
“[u]pon receipt of the completed summons forms from
Plaintiff, the Clerk shall issue process for Defendants and
forward same to the United States Marshal for service.”
The Court, however, did not issue summonses for both
Defendants until January 11, 2019. Additionally, the U.S.
Marshal did not attempt to effect service until February 5,
2019, when it mistakenly delivered the summons addressed to
Onin to a non-authorized agent at Yates and the summons
addressed to Yates to a non-authorized agent at Onin. Due to
these circumstances and Taylor proceeding in forma
pauperis, Taylor has shown good cause for the failure to
timely effect service. “[A] plaintiff proceeding in
forma pauperis is entitled to rely upon service by the
U.S. Marshals and should not be penalized for failure of the
Marshals Service to properly effect service of process, where
such failure is through no fault of the litigant.”
Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir.
1987). The plaintiff should attempt to remedy possible
defects in the service of process, once they become aware of
them. Ellibee v. Leonard, 226 Fed.Appx. 351, 358
(5th Cir. 2007).
argues that he relied upon this Court and the U.S. Marshals
Service to properly effect service. Nothing in the record
leads the Court to conclude otherwise. The Court must then
inquire as to whether Taylor attempted to remedy these
defects once he became aware of them. The record shows that
Defendants filed their Motion to Dismiss on February 26,
2019. Taylor responded once made aware of the deficiency in
service, and new summonses were served upon the Defendants.
Because of this, the Court finds that Taylor has shown good
cause for the failure to serve. See Gordon v. Davis,
No. 3:10-CV-579-CWR-LRA, 2011 WL 13232542, at *2 (S.D.Miss.
Aug. 19, 2011) (finding good cause to extend time for service
where pro se plaintiff relied upon U.S. Marshal for
service of process); and Smith v. Performance
Contractors, Inc., No. 3:16-CV-902-CWR-LRA, 2017 WL
1347446 (S.D.Miss. Apr. 6, 2017) (denying defendant's
motion to dismiss for insufficiency of service of process
against pro se IFP plaintiff).
given the circumstances, the Court would otherwise be
inclined to use its discretion to order a new deadline for
Court extends the time of service as required under Rule
4(m). Given that Defendants have already been served with the
reissued summonses and have raised no issue as to their
service in their rebuttal, it is unnecessary for the Court to
set a new period of time. “The question of whether to
dismiss for failure to effect service is one in which a
district court enjoys some discretion and so long as no legal
authority inflexibly requires otherwise, this Court is loathe
to deprive a pro se party of its day in court because of
imperfect, but ultimately effective, navigation of the Rules
of Civil Procedure.” Howard, 277 F.R.D at 171
Defendants' Motion to Dismiss is denied.