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Bounds v. Textron, Inc.

United States District Court, E.D. Louisiana

December 28, 2018

CHARLOTTE RENEE BOUNDS
v.
TEXTRON, INC., ET AL.

          ORDER AND REASONS

          JANIS VAN MEERVELD, UNITED STATES MAGISTRATE JUDGE.

         Before the Court is the Rule 4(m) Motion to Dismiss filed by defendants Textron Systems Marine & Land Systems, a division of Textron, Inc. (“Textron”), and Gordon Scott. (Rec. Doc. 28). For the following reasons, the Motion is GRANTED.

         Background

         This is an employment discrimination lawsuit. Plaintiff Charlotte Renee Bounds is a tig and mig aluminum welder who began working for Textron in April 2017. She alleges that she was subjected to unwanted sexual harassment by senior welder Gordon Scott and other employees. For example, she says Mr. Scott asked her inappropriate questions about her sexuality, took a picture of her rear end while she was bending over welding, followed her around, and gave her inappropriate hand gestures. Ms. Bounds alleges that she reported these incidents through all channels at Textron. Following her complaints, she alleges she was subjected to a hostile work environment including negative performance evaluations, unwarranted criticisms regarding her job performance, being forced to work in close proximity to Mr. Scott, having her gas line disconnected by co-workers on the upper deck while she was welding in the bottom of the boat, and having her air bag manipulated by co-workers while she was welding. On November 16, 2017, she filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”). A Notice of Right to Sue was issued on March 8, 2018. Ms. Bounds filed this lawsuit on April 26, 2018.

         Pursuant to the Federal Rules of Civil Procedure, Ms. Bounds was required to complete service on the defendants by July 25, 2018, but she failed to do so. On July 31, 2018, more than 90 days after the filing of the lawsuit, this case was set for the court's call docket and Ms. Bounds was ordered to appear and explain why her lawsuit should not be dismissed for failure to timely effect service. The order provided that if service was completed by August 28, 2018, the order would be satisfied, and no appearance would be necessary. Nothing was filed in the record by that date. And neither Ms. Bounds nor her counsel appeared as ordered on August 29, 2018. The court reset the matter for its September 26, 2018, call docket, and again neither Ms. Bounds nor her counsel appeared, nor was evidence of service entered into the record by that date.

         On that same day, Ms. Bounds' counsel, Julie Knight, filed a motion for extension of time to perpetuate service. Ms. Knight represented that she had been trying to obtain a waiver of service from the defendants for the preceding 60 days. She asserted that she had communicated and emailed a copy of the complaint and a waiver of service to Textron's in-house counsel and was under the belief that waiver would be provided. She explained that she had missed the September 26, 2018, docket call due to an illness. The court granted Ms. Bounds' motion and allowed Ms. Bounds until October 12, 2018, to complete service.

         On October 11, 2018, Ms. Bounds filed evidence of service on Textron into the record. Ms. Bounds requested additional time to serve Mr. Scott, explaining that the process server had not been able to locate him. The court granted the extension, and Ms. Bounds filed evidence of service on Mr. Scott into the record on November 5, 2018. Textron and Mr. Scott have jointly filed the present motion to dismiss on the grounds that Ms. Bounds failed to serve them within the time period required by Federal Rule of Civil Procedure 4(m). The parties consented to proceed before the Magistrate Judge and the matter was referred to the undersigned on December 17, 2018.

         Law and Analysis

         1. Standard for Dismissal under Rule 4(m)

         “If a defendant is not served within 90 days after the complaint is filed, ” Federal Rule of Civil Procedure 4(m) provides that the court “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.” Fed. R. Civ. Proc. 4(m). The “good cause” standard for extensions has been described as requiring:

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, and some showing of “good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified” is normally required.

Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985) (quoting 10 Wright & Miller, Federal Practice and Procedure: Civil § 1165) (emphasis in original). For example, in Winters, the plaintiffs had not yet served the defendant more than 180 days after filing suit, so the defendant moved to dismiss under Rule 4(j), [1] which is now Rule 4(m). Id. at 1304. A month after the filing of the motion, the defendant was finally served. Id. The district court granted the motion to dismiss, and the Fifth Circuit Court of Appeals affirmed. Id. at 1307. In considering whether the plaintiffs had established good cause, the Fifth Circuit noted that the plaintiffs did not contend that they were unable to timely serve the defendant or even that they had attempted to do so. Id. at 1306-07. Instead, plaintiffs argued that they should not be required to incur the costs of service because they had served the defendant with another, identical lawsuit that plaintiffs had filed in state court and which the defendant had removed. Id. The Fifth Circuit rejected this argument and further pointed out that the plaintiffs did not contend that defendant was aware of the lawsuit and the defendant asserted that it had inadvertently stumbled upon it. Id. at 1307. The court of appeals found the plaintiffs had not shown good cause for their failure to timely serve the defendant. Id.

         Similarly, in Gartin v. Par Pharm. Companies, Inc., the plaintiffs had not served the defendant until 90 days after the time period required by Rule 4(m). 289 Fed.Appx. 688, 693 (5th Cir. 2008). The plaintiffs argued that confusing corporate nomenclature, uncooperative defense counsel, and plaintiffs' proper service on defendant's parent corporation established good cause for failure to timely serve the defendant. Id. The Fifth Circuit found such mistakes of counsel and ignorance of the rules were insufficient to establish good cause. Id.

         “[E]even if good cause is lacking, the court has discretionary power to extend time for service.” Newby v. Enron Corp., 284 Fed.Appx. 146, 149 (5th Cir. 2008). The Fifth Circuit has explained that “[s]uch relief 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.'” Id. (quoting Fed. R. Civ. Proc. 4(m) advisory committee's note to 1993 amendment). Although recognizing the principle in Newby, the Fifth Circuit in that case rejected plaintiffs' argument that good cause was established solely by the fact that their action would be time barred if they were required to re-file. Id. In affirming the district court's dismissal, the court ...


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