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Thomas v. Gulotta

United States District Court, M.D. Louisiana

June 7, 2018

MAURICE THOMAS
v.
ORIAN GULOTTA, ET AL.

          RULING

          JOHN W. DEGRAVELLES JUDGE.

         Before the Court is a Motion to Dismiss for failure to timely serve pursuant to Rule 12(b)(5) and Rule 4(m) of the Federal Rules of Civil Procedure and for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, filed on behalf of Unknown Plaquemine Police Officer 1, Unknown Plaquemine Police Officer 2, Unknown Plaquemine Police Officer 3, Unknown Plaquemine Police Officer 4, in their official and individual capacities, and the Unknown Liability Insurance Company of All Defendants (collectively “Unknown Defendants”).[1]The Motion is unopposed. For the following reasons, the Plaintiff's claims against the Unknown Defendants shall be dismissed.

         I. Brief Overview

         Plaintiff filed his verified Complaint on July 3, 2015, in which he asserted 42 U.S.C. Section 1983 and 42 U.S.C. Section 1985 constitutional and state law claims against the following Defendants: Police Chief Orian Gulotta, Plaquemine Police Officer John Little, Unknown Plaquemine Police Officer 1, Unknown Plaquemine Police Officer 2, Unknown Plaquemine Police Officer 3, Unknown Plaquemine Police Officer 4, in their official and individual capacities, and the City of Plaquemine.[2] The record in this matter reveals that of these Defendants, service of process was only effected on Police Chief Orian Gulotta, Police Officer John Little, and the City of Plaquemine.[3]

         II. Law and Analysis

         Federal Rule of Civil Procedure (“Rule”) 12(b)(5) provides for the dismissal of a clam if service was not timely made. When service of process is challenged, the party responsible for effectuating service bears the burden of establishing its validity.[4] Federal Rule of Civil Procedure 4 governs service of process generally, and Rule 4(m) provides as follows:

If a defendant is not served within 120 days after the complaint is filed, the court . . . must dismiss the action without prejudice against that defendant or order that service be made within a specified time.[5]

         As the Fifth Circuit recently explained, however, there is a “caveat” to dismissal: “If the plaintiff shows good cause for the failure [to timely effectuate service], the court must extend the time for service for an appropriate period.”[6] “‘[G]ood 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.'”[7]

         However, if the claims being dismissed without prejudice for failure to comply with Rule 4(m) will be time-barred by statutes of limitations upon refiling, the dismissal should be treated as a dismissal with prejudice under Rule 41(b). A dismissal with prejudice under Rule 41(b) requires “a clear record of delay or contumacious conduct by the plaintiff, ” and a finding that “lesser sanctions would not serve the best interest of justice.”[8]

         Considering the pending Motion is unopposed, it goes without saying that Plaintiff has failed to make any attempt to demonstrate good cause for his failure to serve the remaining Unknown Defendants over the last two years and eleven months. However, under the applicable statute of limitations, any dismissal without prejudice of Plaintiff's 42 U.S.C. Section 1983 and 1985 constitutional claims and state law claims for failure to effectuate timely service against the Unknown Defendants, would effectively function as a dismissal with prejudice, because the claims would be time-barred upon refiling.[9] Therefore, the Court must treat this dismissal on Rule 4(m) grounds as a Rule 41(b) dismissal with prejudice.

         Initially, the Court finds that there is a clear record of delay. Within the Fifth Circuit, a “delay which warrants dismissal with prejudice must be longer than just a few months; instead, the delay must be characterized by significant period of total inactivity.”[10] The Fifth Circuit has explained “that the failure to service process within the statute of limitations period is extremely prejudicial because it affects all the defendant's preparations.”[11] In Veazey v. Young's Yacht Sale & Serv, the Fifth Circuit elaborated on this point:

We view a delay between filing and service as being more likely to result in prejudice than a delay occurring after service, for in the former situation the defendant is not put on formal notice and allowed a full opportunity to discover and preserve relevant evidence when the matter is still relatively fresh and the evidence is intact and available.[12]

         In this case, approximately three years have lapsed since the Plaintiff filed his Complaint without any attempts being made to serve the Unknown Defendants. The Court finds that this 35 month time span amounts to a “significant period of total inactivity.” Plaintiff has also missed the 120-day deadline to serve the Unknown Defendants not by a few days or a couple of weeks, but by more than 900 days.[13] The Court further finds that such a delay to effectuate service is not a “simple inadvertence.”[14]

         The Court also finds that it would be unduly prejudicial to allow the Plaintiff to amend his Complaint at this stage of the litigation in order to identify and serve these Unknown Defendants. Allowing Plaintiff to do so would “threaten the integrity of the judicial process, ” and unduly prejudice all of the Defendants, considering the deadlines for conducting fact and expert discovery and filing dispositive motions have passed, and a jury trial is currently set for September 24, 2018.[15] Hence, the Court finds that while the ...


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