Taylor v. Logic 20/20 Inc. et al, No. 2:2013cv01199 - Document 32 (W.D. Wash. 2014)
Court Description: ORDER denying 19 Mr. O'Meara's Motion to Dismiss and GRANTS Ms. Taylor an extension of 14 days to effect service. If Ms. Taylor does not file proof of service with the court within 14 days of the date of this order, the court will dismiss Mr. OMeara from this case without prejudice, by Judge James L. Robart.(MD)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 STACY TAYLOR, Plaintiff, 11 LOGIC 20/20 INC., et al., Defendants. 14 15 16 ORDER DENYING MOTION TO DISMISS v. 12 13 CASE NO. C13-1199JLR I. INTRODUCTION Before the court is Defendant Christian O’Meara’s motion to dismiss Plaintiff 17 Stacy Taylor’s sexual harassment claims for failure to properly serve him with a copy of 18 the summons and complaint. (See Mot. (Dkt. # 19).) Mr. O’Meara argues that he has 19 never been properly served in this action. (See id.) He appears to be correct. 20 Nevertheless, the court has discretion to extend the deadline for service, and this is a 21 suitable circumstance in which to exercise that discretion. Having considered the 22 submissions of the parties, the governing law, and the record, the court DENIES the ORDER- 1 1 motion and GRANTS Ms. Taylor an additional 14 days from the date of this order to 2 serve Mr. O’Meara. If Ms. Taylor does not file proof of service with the court within 14 3 days, Ms. Taylor’s claims against Mr. O’Meara will be dismissed without prejudice. 4 5 II. BACKGROUND This is a sex discrimination case. Ms. Taylor alleges that Mr. O’Meara, and her 6 employer, Logic 20/20, Inc. (“Logic 20/20”), subjected Ms. Taylor to “unlawful 7 discrimination in the form of gender based harassment.”1 (Compl. (Dkt. # 1) at 1.) Ms. 8 Taylor filed this lawsuit in federal court on July 10, 2013. (See generally id.) 9 On November 20, 2013, the court ordered Ms. Taylor to show cause why she had 10 not served Defendants within 120 days pursuant to Federal Rule of Civil Procedure 4(m). 11 (See 11/20/13 Order (Dkt. # 3).) Her attorney at the time, Cheryl Middleton, responded 12 to the court’s order, stating that she had informed Ms. Taylor on September 18, 2013, that 13 she would no longer be able to represent Ms. Taylor in this matter and reminded Ms. 14 Taylor of the 120-day time period for service. (Resp. to Show Cause Order (Dkt. # 5) at 15 1.) Ms. Middleton also stated that she spoke with Ms. Taylor again about the time period 16 for service on both September 27, 2013, and October 31, 2013. (Id. at 1-2.) Ms. 17 Middleton also took steps to help Ms. Taylor retain new counsel during this time, and 18 Ms. Taylor retained her present counsel on November 26, 2013. (Id. at 2.) On the same 19 day, Ms. Middleton filed a praecipe to issue a summons in this case. (See Dkt. # 4.) 20 1 In addition to this claim, which Ms. Taylor alleges as to both Mr. O’Meara and Logic 20/20, Ms. Taylor further alleges that Logic 20/20 subjected her to retaliation, disparate treatment, pattern and practice discrimination, constructive discharge, unequal pay on the basis 22 of gender, and negligent infliction of emotional distress. (Compl. (Dkt. # 1) at 1.) 21 ORDER- 2 1 Based on these facts, the court granted Ms. Taylor an additional 30 days from 2 December 5, 2013, to serve Defendants under Rule 4(m), finding that good cause 3 supported an extension of time. (12/5/13 Order (Dkt. # 6).) Ms. Taylor, therefore, had 4 until January 4, 2014, to serve Defendants. Ms. Taylor’s new counsel appeared in this 5 action on December 12, 2013, (Nots. of Appear. (Dkt. ## 7, 8)), and the court issued a 6 summons on December 27, 2013 (Summ. (Dkt. # 10)). 7 Ms. Taylor and Mr. O’Meara dispute the facts surrounding Ms. Taylor’s attempts 8 to effect service on Mr. O’Meara.2 (See generally Mot; Resp. (Dkt. # 23).) In his motion 9 to dismiss, Mr. O’Meara states that Ms. Taylor “did not serve Mr. O’Meara within the 30 10 day time limit imposed by the Court.” (Mot. at 3.) Mr. O’Meara asserts that “on or about 11 February 8, 2014,” a process server arrived at his home as his 11-year-old daughter was 12 taking out the recycling. (Id.) Mr. O’Meara then opened the door to talk to the person, 13 who he claims he did not know was a process server, but had to shut the door to his home 14 to control his dogs. (Id.) Mr. O’Meara asserts that he never heard the person state that 15 she was serving legal papers and that he does not remember confirming his identity to 16 her. (Id.) Mr. O’Meara claims that, once he had his dogs under control, he re-opened his 17 door, only to discover that the person had left a summons and complaint on his doorstep. 18 (Id. at 4.) He asserts that he was not attempting to evade service. (Id.) 19 20 2 Ms. Taylor served Logic 20/20 on January 3, 2014, at its office by leaving a copy of the summons and complaint with Logic 20/20’s Treasurer, Teresa Kotwis. (See Mot. at 3; Resp. at 2.) The record does not support a finding that Ms. Kotwis had authority to accept service on 22 behalf of Mr. O’Meara. 21 ORDER- 3 1 Ms. Taylor’s version of the facts differs significantly. (See generally Resp.) She 2 details seven instances in which various people attempted to serve Mr. O’Meara in 3 January 2014 on her behalf—three times at Logic 20/20’s office, once by mail to Logic 4 20/20’s office, and three times at Mr. O’Meara’s home. (See Resp. at 2-4.) All of these 5 attempts except one came after the 30-day extension for service had expired. (See id.) 6 Ms. Taylor asserts that Mr. O’Meara intentionally evaded service during this time by 7 having Logic 20/20 employees tell the legal intern who attempted service that Mr. 8 O’Meara was not in the office. She also asserts that Mr. O’Meara would not answer the 9 door when process servers went to his home. (See Resp. at 3-4.) 10 Ms. Taylor also has a different version of the February 8, 2014, service attempt. 11 She states that when the process server Muffin Anderson arrived at Mr. O’Meara’s home 12 on February 8, 2014, a child opened the door and then closed it. (Resp. at 4.) However, 13 Ms. Taylor alleges that when Mr. O’Meara opened the door shortly thereafter, Ms. 14 Anderson asked if he was Christian O’Meara, and he responded “yes.” (Id.) Ms. 15 Anderson then stated, “I have papers to serve on you.” (Id. at 5.) Mr. O’Meara then said 16 he was not home, apologized, and closed the door. (See id.) The process server Ms. 17 Anderson left the summons and complaint on Mr. O’Meara’s doorstep. (Id.) 18 Despite their disagreement, there is one fact about this incident on which the 19 parties do agree. The parties agree that the summons left at Mr. O’Meara’s doorstep was 20 not signed by the court clerk and was not marked with the seal of the court. (See Mot. at 21 4, 8-9; Resp. at 4, 7-8 (“The copy of the summons and complaint that was given to 22 Muffin Anderson for service for some reason did not contain a clerk’s signature.”).) It is ORDER- 4 1 unclear why this was the case. (See id.) Plaintiff asserts that other attempts at service in 2 this case were made with a valid, signed summons. (Id. at 7.) 3 On February 27, 2014, Mr. O’Meara filed the instant motion to dismiss “pursuant 4 to FRCP 4(m).” (See Mot.) He argues that (1) Ms. Taylor did not properly serve him 5 within the prescribed time limitations, (2) service was not effective under Federal Rule of 6 Civil Procedure 4(e), and (3) the unsigned summons was invalid under Federal Rule of 7 Civil Procedure 4(a). (See id.) 8 9 III. ANALYSIS Federal Rule of Civil Procedure 4 requires plaintiffs to serve defendants with a 10 summons and a copy of the plaintiff’s complaint and sets forth the specific requirements 11 for doing so. See Fed. R. Civ. P. 4. Rule 4(m) provides that the complaint should be 12 dismissed after 120 days unless “good cause” is shown to extend the service period: 13 14 15 If a defendant is not served within 120 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. 16 Fed. R. Civ. P. 4(m). 17 Under Rule 4(a), a summons must “be signed by the clerk” and must “bear the 18 court’s seal.” Fed. R. Civ. P. 4(a)(1). This is not a mere technicality. “The issuance of a 19 summons signed by the Clerk, with the seal of the Court, and the time designated within 20 which a defendant is required to appear and attend, are essential elements of the court’s 21 personal jurisdiction over the defendant.” Ayres v. Jacobs & Crumplar, P.A., 99 F.3d 22 565, 568 (3rd Cir. 1996); see also McClain v. 1st Sec. Bank of Wash., No. 13-cv-02277ORDER- 5 1 RSM, 2014 WL 457599, at *1 (W.D. Wash. 2014). “‘A summons is process because its 2 service subjects the person served to the court’s jurisdiction, which is necessary to 3 validate a judgment that the court might render against the person.’” Id. (quoting Fed. R. 4 Civ. P. 4; 28 U.S.C.A. Practice Commentary C4-4 (1992 & Supp. 1996)). If this process 5 is inadequate because it lacks a signature and seal, the court has no personal jurisdiction. 6 Id. at 569 (“A summons which is not signed and sealed by the Clerk of the Court does not 7 confer personal jurisdiction over the defendant.”) (citing 2 James W. Moore, Moore’s 8 Federal Practice ¶ 4.05 (2d ed. 1996); 4a Charles Alan Wright & Arthur R. Miller, 9 Federal Practice and Procedure § 1084 (2d ed. 1987)). In such a case, it is “unnecessary 10 for the district courts to consider such questions as whether service was properly 11 made . . . .” Id. 12 Ms. Taylor has made many attempts to serve Mr. O’Meara, but so far none have 13 been successful. The court has examined the evidence submitted by both sides with 14 respect to the various service attempts. The only event that comes anywhere close to 15 being proper service is the February 8, 2014, attempt. (See Mot. at 3; Resp. at 2-4.) In 16 that attempt, Mr. O’Meara answered the door and, depending on who is believed, either 17 closed the door to evade service, or to control his dogs. (See id.) After that, the process 18 server left the summons and complaint on Mr. O’Meara’s doorstep. (See id.) It is 19 possible that this could amount to proper service depending on the resolution of certain 20 critical disputed facts. However, for that attempt, both sides agree that the summons left 21 at Mr. O’Meara’s doorstep was not signed and did not bear the court’s seal. Thus, this 22 ORDER- 6 1 attempt, which is far closer than any of the others to being effective service (unsigned 2 summons notwithstanding), does not satisfy Rule 4. 3 Further, the time for serving Mr. O’Meara has clearly passed. Ms. Taylor’s 120 4 days under Rule 4(m) expired on October 7, 2013. (See Dkt.) Her 30-day extension 5 expired on January 4, 2014. (See 12/5/13 Order.) Most of Ms. Taylor’s service attempts 6 came after these deadlines but, in any event, none of them amounted to proper service on 7 Mr. O’Meara. 8 Accordingly, the court must decide whether to extend the time for service or 9 dismiss this action. In deciding whether to dismiss a case or extend the time period for 10 service under Rule 4(m), the court employs a two-step analysis. Efaw v. Williams, 473 11 F.3d 1038, 1040 (9th Cir. 2007). First, if there is a showing of good cause for the delay, 12 the court must extend the time period. Id. Second, if there is no showing of good cause, 13 the court has discretion to either dismiss without prejudice or extend the time period. Id. 14 Ms. Taylor has not established good cause. Good cause may be demonstrated by 15 establishing, at a minimum, excusable neglect. Boudette v. Barnette, 923 F.2d 754, 756 16 (9th Cir. 1991). Four factors are relevant to the determination of excusable neglect: “(1) 17 danger of prejudice [to the defendant], (2) the length of delay and its potential impact on 18 judicial proceedings, (3) the reason for the delay, including whether it was within the 19 reasonable control of the [plaintiff], and (4) whether the [plaintiff] acted in good faith.” 20 In re Sheehan, 253 F.3d 507, 514 (9th Cir. 2001). However, “inadvertence, ignorance of 21 the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect.” 22 Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 392 (1993). Thus, ORDER- 7 1 the Ninth Circuit has held that attorney error is not excusable neglect. See, e.g., Kyle v. 2 Campbell Soup Co., 28 F.3d 928, 931-32 (9th Cir. 1994) (holding that an attorney’s 3 mistake of law interpreting the time to file a post-trial motion did not constitute excusable 4 neglect). 5 Ms. Taylor’s efforts do not meet the good cause standard. The delay in serving 6 Mr. O’Meara has been substantial. As noted above, both deadlines for serving Mr. 7 O’Meara came and went long ago. (See Dkt.; 12/5/13 Order.) Further, Ms. Taylor has 8 offered no reason for why she waited until the day before the 30-day extension expired to 9 attempt service. (See Resp.) Nor has she offered any reason for why she attempted 10 service on Mr. O’Meara with an unsigned summons that had no seal on it. (Resp. at 4, 711 8.) And while there is no indication of bad faith on the part of her counsel, there is also 12 no explanation for why Ms. Taylor did not simply move for an additional extension of 13 time to effect service once it became apparent that her initial efforts would not succeed. 14 (See Dkt.) In sum, and examining all the evidence before the court, Ms. Taylor has not 15 demonstrated good cause. 16 Nevertheless, the court has discretion to grant an extension of time even in the 17 absence of good cause. Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003) (“On 18 its face, Rule 4(m) does not tie the hands of the district court to grant an extension of time 19 to serve the complaint after the 120-day period.”). The court’s discretion to extend time 20 for service under Federal Rule 4(m) is broad. Henderson v. United States, 517 U.S. 654, 21 661 (1996) (noting that Rule 4’s 120-day time period for service “operates not as an outer 22 limit subject to reduction, but as an irreducible allowance.”) However, it is not limitless. ORDER- 8 1 Efaw, 473 F.3d at 1041. In making discretionary extension decisions under Rule 4(m), a 2 district court may consider factors ‘like . . . prejudice to the defendant, actual notice of 3 the lawsuit, and eventual service.” Id. (citing Troxell v. Fedders of N. Am., Inc., 160 4 F.3D. 381, 383 (7th Cir. 1998)); accord Scott v. Sebelius, 379 F. App’x 603, 604 (9th Cir. 5 2010). 6 Here, it is appropriate to extend the deadline for service one last time. Mr. 7 O’Meara clearly has actual notice of the lawsuit at this point, and the evidence before the 8 court indicates that he may have known about it for some time. And while that is not 9 sufficient to give the court personal jurisdiction, it certainly militates in favor of allowing 10 additional time for service. Further, it is difficult to imagine what good would come from 11 dismissing Mr. O’Meara. Logic 20/20 has already been served, and this case will 12 proceed against it. (See Aff. of Service (Dkt. # 11).) Mr. O’Meara asserts that Ms. 13 Taylor could simply re-file without any difficulty. (Mot. at 2, 5.) But if this happens, 14 presumably, the new case would simply be consolidated with this one, creating an 15 unnecessary procedural complication. If Mr. O’Meara is correct, there is nothing to be 16 gained from dismissal save delay and frustration for Ms. Taylor. In contrast, there is 17 much to be lost. Ms. Taylor has undertaken a substantial amount of effort and expense 18 attempting to serve Mr. O’Meara up to this point. In addition, the court would risk 19 approving of potentially evasive conduct and placing its imprimatur on a possible attempt 20 to avoid process. Finally, Mr. O’Meara’s claims of prejudice (see Mot. at 6-7) are 21 questionable at best given that he has likely had actual notice of this lawsuit for some 22 time. ORDER- 9 1 2 IV. CONCLUSION In light of these considerations, the court DENIES Mr. O’Meara’s motion to 3 dismiss and GRANTS Ms. Taylor an extension of 14 days to effect service. If Ms. 4 Taylor does not file proof of service with the court within 14 days of the date of this 5 order, the court will dismiss Mr. O’Meara from this case without prejudice. 6 Dated this 8th day of April, 2014. 7 A 8 9 JAMES L. ROBART United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER- 10
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