United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN CF UNITED STATES DISTRICT JUDGE.
before the Court are defendant Robin Childress's motion
to dismiss (Dkt. # 20), and defendant Independent
Opportunities, Inc.'s motion to dismiss (Dkt. # 21).
April 6, 2018, plaintiff Jerry Allen Taylor filed a pro
se civil complaint (Dkt. # 1), alleging claims of
employment discrimination under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. On June
1, 2018, the Court granted plaintiff's motion to proceed
in forma pauperis (Dkt. # 2), and ordered plaintiff
to submit to the Clerk of the Court one completed summons,
one completed United States Marshals Service (USMS) form
(USM-285 form), and one copy of the complaint for each
defendant. Dkt. # 3. Plaintiff completed
summonses and USM-285 forms for defendants Amy
Fanning and Roger Jones, but failed to complete a summons or
USM-285 form for any of the five other defendants named in
the complaint. Further, the summonses that plaintiff
completed for defendants Fanning and Jones were returned
unexecuted, because plaintiff failed to deliver them to the
Clerk of the Court and mailed them directly to the USMS
instead. Dkt. ## 5, 6. On July 10, 2018, the Court allowed
plaintiff the opportunity to cure his error, and again
directed him to complete one summons and one USM-285 form for
each defendant, and then submit the documents to the Clerk of
the Court. Dkt. # 7. When plaintiff failed to comply with the
Court's orders by September 5, 2018, the Court dismissed
the case without prejudice. Dkt. # 8.
October 11, 2018, plaintiff filed a motion to reopen the case
(Dkt. # 9), and attached to the motion the completed USM-285
forms for defendants Fanning and Jones only. Id. at
2-3. The Court deemed the USM-285 forms as having been
delivered to the Clerk of the Court. Dkt. # 10, at 2.
However, Plaintiff did not attach to the motion, or otherwise
deliver to the Clerk of the Court, completed summonses for
defendants Fanning and Jones. In addition, plaintiff again
failed to complete a summons or USM-285 form for any of the
five other defendants named in the complaint. Therefore, the
Court denied plaintiff's motion to reopen the case. Dkt.
December 19, 2018, plaintiff filed a second motion to reopen
the case (Dkt. # 11), and delivered to the Clerk of the Court
completed summonses and USM-285 forms for all defendants. The
Court granted plaintiff's motion, and reopened the case
as to all defendants. Dkt. # 12. Defendants Independent
Opportunities and Childress were successfully served on
January 7, 2019. Dkt. ## 14, 15. Defendant Fanning was
successfully served on January 14, 2019. Dkt.# 16. However,
the summonses issued to defendants Vicki Oneal, Gordon
Norwood, and Roger Jones were returned unexecuted. Dkt. ##
17, 18, 19. On January 28, 2019, defendants
Independent Opportunities and Childress each filed a motion
to dismiss (Dkt. ## 20, 21). Defendant Independent
Opportunities moves to dismiss the action on the basis that
the Court should reconsider and deny plaintiff's second
motion to reopen (Dkt. # 11). Dkt. # 21. Independent
Opportunities argues that, in the alternative, the Court
should dismiss plaintiff's unlawful discharge claim as
having been untimely filed with the Oklahoma Office of the
Attorney General Office of Civil Rights Enforcement (OCRE) or
the Equal Employment Opportunity Commission (EEOC).
Id. Defendant Childress requests that the Court
dismiss her from the action because individual capacity suits
are not permitted under Title VII, or, in the alternative,
that the Court dismiss the case for the reasons set forth in
Independent Opportunities's motion to dismiss. Dkt. # 20.
The deadline to file a response to the motions was February
19, 2019, and no response has been filed by plaintiff at this
Independent Opportunities first argues that the Court should
reconsider plaintiff's motion to reopen the case. Dkt. #
21, at 11-12. Independent Opportunities informs the Court
that it had not received any notice of plaintiff's second
motion to reopen the case and, therefore, did not have an
opportunity to respond. Id. at 12. The Court was
aware that defendants had not yet been served at the time the
Court was considering plaintiff's second motion to reopen
the case; however, the Court was unaware that plaintiff had
also failed to, at the very least, mail his second motion to
reopen the case to defendant Independent Opportunities, his
former employer. Had the Court known that none of the
defendants had received any notice whatsoever of
plaintiff's motion, the Court would not have reopened the
case. In any case, defendant Independent Opportunities has
now been served, has had an opportunity to respond to the
second motion to reopen, and has, in fact, responded to the
motion. Therefore, the Court will now address Independent
Opportunities's motion to dismiss the action on the basis
that plaintiff's second motion to reopen should have been
Independent Opportunities correctly notes, Federal Rule of
Civil Procedure 4(m) requires a defendant to be served within
90 days after a complaint is filed. Fed.R.Civ.P. 4(m). Rule
4(m) also allows the Court to “extend the time for
service for an appropriate period . . . if the plaintiff
shows good cause for the failure.” Id. In its
July 10, 2018 order, the Court allowed plaintiff an extension
of time to serve defendants. Dkt. # 7. However, the Court
dismissed the action after plaintiff had still failed to
serve defendants two months later. Dkt. # 8.
Opportunities argues that the Court's dismissal
constituted a final appealable order. Dkt. # 21, at 13.
Independent Opportunities argues, therefore, that
plaintiff's second motion to reopen (Dkt. # 11) was
governed by Federal Rule of Civil Procedure 60(b). The Court
agrees that its order dismissing the case constituted a final
appealable order. In the Tenth Circuit, “[a] dismissal
of the complaint is ordinarily a non-final, nonappealable
order . . ., while a dismissal of the entire action is
ordinarily final.” Moya v. Schollenbarger, 465
F.3d 444, 449 (10th Cir. 2006). Here, the Court clearly
dismissed the entire action. Moreover, Independent
Opportunities notes that if plaintiff were to file a new
suit, the new suit would be untimely filed. Dkt. # 21, at 13.
Such a result supports the Court's conclusion that
dismissal was a final, appealable order. Ahmed v.
Dragovich, 297 F.3d 201, 207 (3d Cir. 2002); Tuke v.
United States, 76 F.3d 155, 156 (7th Cir. 1996).
the Court agrees that plaintiff's second motion to reopen
was, therefore, governed by Rule 60(b). A litigant subject to
an adverse final order may file either a motion to alter or
amend the judgment pursuant to Rule 59(e), or a motion
seeking relief from judgment pursuant to Rule 60(b). Van
Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.
1991). “Which rule applies to a motion depends
essentially on the time a motion is served. If a motion is
served within [twenty-eight] days of the rendition of
judgment, the motion ordinarily will fall under Rule 59(e). .
. . If the motion is served after that time it falls under
Rule 60(b).” Id. Here, plaintiff filed his
second motion to reopen the case 105 days after the Court
issued its order dismissing the action. Dkt. # 11.
Accordingly, the Court finds that Rule 60(b) governs
plaintiff's second motion to reopen the case.
60(b) provides that a court may relieve a party from a final
judgment, order, or proceeding for the following reasons: (1)
“mistake, inadvertence, surprise, or excusable
neglect”; (2) newly discovered evidence; (3) fraud,
misrepresentation, or misconduct by an opposing part; (4) the
judgment is void; (5) “the judgment has been satisfied,
released, or discharged; it is based on an earlier judgment
that has been reversed or vacated; or applying it
prospectively is no longer equitable”; or (6)
“any other reason that justifies relief.”
Fed.R.Civ.P. 60(b). Plaintiff does not assert any reason in
support of relief in the motion. Nonetheless, the Court will
consider whether the record supports any of the reasons
listed in Rule 60(b).
initial matter, the Court finds that the reasons listed in
Rule 60(b)(2)-(5) are inapplicable to the present case.
Therefore, the Court will address whether relief from the
order is justified based on the reasons set forth in Rule
60(b)(1) and (6) only. “[T]he kinds of mistakes by a
party that may be raised by a Rule 60(b)(1) motion are
litigation mistakes that a party could not have protected
against . . . . Rule 60(b)(1) relief has also been granted
upon a showing of a party's excusable failure to comply
with procedural rules.” Cashner v. Freedom Store,
Inc., 98 F.3d 572, 577-78 (10th Cir. 1996). Here, the
Court explicitly outlined for plaintiff on multiple occasions
the steps he was required to take to allow the USMS to
perfect service upon the defendants named in the complaint.
Nonetheless, plaintiff repeatedly failed to comply with the
Court's clear orders. Even assuming that plaintiff
committed an excusable mistake by mailing his completed
USM-285 forms and summonses for defendants Jones and Fanning
to the USMS rather than to the Clerk of the Court, his
mistake became inexcusable after he failed to take any action
to cure his error until three months after the Court issued
an order allowing him the opportunity to do so. Moreover,
plaintiff did not complete USM-285 forms and summonses for
defendants Independent Opportunities, Childress, Oneal,
Arnold, or Norwood until nine months after filing his
complaint. The Court could not have been clearer that
plaintiff was required to complete each form for each
defendant identified in the complaint. Therefore, the Court
finds that plaintiff's repeated failure to comply with
the Court's orders does not constitute inexcusable
mistake, inadvertence, inexcusable neglect, or surprise.
Accordingly, the Court finds that relief is not warranted
under Rule 60(b)(1).
may be sought under Rule 60(b)(6) for “any other reason
that justifies relief” but only “when the movant
shows ‘any . . . reason justifying relief from the
operation of the judgment' other than the more specific
circumstances set out in Rules 60(b)(1)-(5).”
Gonzalez v. Crosby, 545 U.S. 524, 529 (2005).
Moreover, “[t]o justify relief under subsection (6), a
party must show ‘extraordinary circumstances'
suggesting that the party is faultless in the delay.”
Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd.
Partnership, 507 U.S. 380, 393 (1993). Here, plaintiff
fails to assert any reason that justifies relief under Rule
60(b)(6). Moreover, the record fails to show that there are
any extraordinary circumstances that would warrant such
relief. Rather, the record suggests that plaintiff's
delay in complying with the Court's orders was no
one's fault but his own. Therefore, the ...