United States District Court, W.D. Oklahoma
THALIA D. WAGONER, Plaintiff,
DAVID TOWNE, et al., Defendants.
OPINION AND ORDER
CHARLES B. GOODWIN, UNITED STATES DISTRICT JUDGE
filing this action on August 23, 2018, Plaintiff Thalia
Wagoner (“Plaintiff”) failed to serve Defendant
David Towne within the 90-day time period allotted by Federal
Rule of Civil Procedure 4(m). Accordingly, the Court on
February 5, 2019, directed Plaintiff to show cause as to why
her claims against Defendant Towne should not be dismissed.
See Order (Doc. No. 19). Plaintiff failed to timely
respond to the Court's show-cause order.
4(m) of the Federal Rules of Civil Procedure provides 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.” Fed.R.Civ.P. 4(m). If,
however, “the plaintiff shows good cause for the
failure, the court must extend the time for service for an
appropriate period.” Id. As noted, Plaintiff
has not shown good cause for her failure to serve Defendant
Towne and is not, therefore, entitled to a mandatory
extension of time.
resulting question is whether the Court should grant
Plaintiff a permissive extension of time. A permissive
extension may be justified where: (1) “the applicable
statute of limitations would bar the refiled action”;
(2) “the plaintiff has tried, but failed, to effect
service upon the United States” in accordance with Rule
4(i); or (3) an extension is necessary to protect a pro se
plaintiff “from consequences of confusion or delay
attending the resolution of an in forma pauperis
petition.” Espinoza v. United States, 52 F.3d
838, 841-42 & n.8 (10th Cir. 1995) (quoting Fed.R.Civ.P.
4(m) advisory committee's note). Here, the only
conceivable basis for granting Plaintiff a permissive
extension is if the applicable statute of limitations would
bar any refiled action.
construing the Complaint, Plaintiff appears to assert a cause
of action for sexual harassment, which may arise under Title
VII and/or 42 U.S.C. § 1983. See Compl. at 1.
It appears that if the Court were to dismiss Plaintiff's
claims-which accrued in June 2018-the limitations period
would have run on Plaintiff's Title VII claim.
See 42 U.S.C. § 2000e-5(e) (requiring
submission of an administrative charge within 180 days after
the alleged unlawful employment practice occurred). The Court
further notes that Oklahoma's “savings statute,
” Okla. Stat. tit. 12, § 100, would not apply to
this claim because the statutory limitations period is
defined by federal law. See Newman v. Burns Int'l
Pinkerton Securitas, No. 07-CIV-281-JHP-PJC, 2008 WL
356879, at *3 (N.D. Okla. Feb. 7, 2008) (“the Oklahoma
Savings Clause does not enlarge the time to file federal
causes of action for which Congress has established a statute
of limitations”). Accordingly, a Rule 4(m) dismissal of
Plaintiff's Title VII claim would bar further pursuit of
Court nonetheless concludes that a permissive extension
should be denied and the matter dismissed. Plaintiff has made
no effort to serve Defendant Towne and has offered no
explanation for her failure to accomplish service, despite
being ordered to do so. A permissive extension is likely to
only further delay the prompt disposition of this matter.
as here, dismissal without prejudice is equivalent to
dismissal with prejudice due to the statute of limitations,
federal courts consider whether dismissal “would
satisfy the interest of justice” by evaluating:
(1) the degree of actual prejudice to the defendant; (2) the
amount of interference with the judicial process; (3) the
culpability of the litigant; (4) whether the court warned the
party in advance of that dismissal of the action would be a
likely sanction for noncompliance; and (5) the efficacy of
Davis v. Miller, 571 F.3d 1058, 1060-64 & n.2
(10th Cir. 2009) (citation and internal quotation marks
respect to the first two factors, Defendant Towne has not
been served, and few resources have been expended to date by
the parties or the Court. Therefore, dismissal would not
prejudice Defendant Towne or cause any significant
interference with the judicial process.
respect to the third and fourth factors, Plaintiff was
expressly warned of the possibility of dismissal, and she
nonetheless failed to take any action. Accordingly, there is
no basis for concluding that Plaintiff is not culpable for
failing to serve Defendant Towne.
respect to the fifth factor-the efficacy of lesser
sanctions-the Court finds that no sanction less than
dismissal is practical in these circumstances. Plaintiffs
failure to serve Defendant Towne and failure to respond to
the Court's show-cause order have impeded the Court's
ability to proceed in this matter because the Court cannot
ascertain whether Plaintiff intends to pursue her causes of
action. Moreover, without proper service or waiver of
service, the Court lacks personal jurisdiction over Defendant
in this matter, thereby making it impossible to progress
toward a merits-based disposition. See Murphy Bros. v.
Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999);
Okla. Radio Assocs. v. FDIC, 969 F.2d 940, 943 (10th
reasons set forth above, even if dismissal of this matter is
equivalent to a dismissal with prejudice, the dismissal would
satisfy the interests of justice. See Ehrenhaus v.
Reynolds,965 F.2d 916, 918 (10th Cir. 1992).