United States District Court, W.D. Oklahoma
KEANNA R. COCKFIELD, Plaintiff,
TOWN OF VALLEY BROOK et al., Defendants.
CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE
10, 2019, Plaintiff Keanna R. Cockfield filed this lawsuit
against two Defendants: (1) Town of Valley Brook and (2) Chad
Scroggins. On that same date, summonses were issued by the
Clerk of Court. Returns of service were filed on September 4,
2019, stating the summonses were executed one day prior. The
summonses directed Defendants to answer or respond to the
complaint within 21 days of service. As of this date,
however, no answer or entry of appearance has been filed by
Defendant Scroggins. Nor has Plaintiff moved for entry of
Town of Valley Brook has filed a Notice (Doc. No. 10)
indicating that the service upon Defendant Scroggins was not
properly completed. Plaintiff's 90-day deadline to effect
service upon this Defendant expired on October 8, 2019.
See Fed. R. Civ. P. 4(m).
light of the above, the Court on October 30, 2019, directed
Plaintiff to show cause in writing, within 14 days, why her
claims against Defendant Scroggins should not be dismissed.
See Doc. No. 14. As of this date, Plaintiff has
offered no additional information to the Court regarding any
attempt to serve Defendant Scroggins.
plaintiff in a federal civil lawsuit is required to have each
defendant served with a summons and a copy of the pleading by
a date certain. See Fed. R. Civ. P. 4(c)(1), (m).
Although Plaintiff is a pro se litigant, she is required to
comply with the same rules of procedure governing other
litigants, including Rule 4. See DiCesare v. Stuart,
12 F.3d 973, 980 (10th Cir. 1993) (stating that pro se
plaintiff was “obligated to follow the requirements of
Fed.R.Civ.P. 4”). Thus, Plaintiff's failure to
complete proper service upon Defendant Scroggins within the
prescribed time limit is grounds for dismissal of all claims
against that party, absent any justification for this
failure. See Fed. R. Civ. P. 4(m) (“If a
defendant is not served within 90 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. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.”).
has made no attempt to show “good cause” under
Rule 4(m) for the failure to complete service upon Defendant
Scroggins, and no “good cause” is otherwise
reflected in the record before the Court. Fed.R.Civ.P. 4(m).
Notwithstanding Plaintiff's failure to show good cause,
the undersigned still must consider whether a permissive
extension of time to complete service of process is
warranted. See Espinoza v. United States, 52 F.3d
838, 841 (10th Cir. 1995). The Tenth Circuit has noted that a
permissive extension of time may be appropriate where
“policy considerations might weigh in favor of granting
a permissive extension of time.” Id. at 842.
In making this determination, the Court must consider: (1)
whether “the applicable statute of limitations would
bar the refiled action”; (2) whether the plaintiff
tried to follow “the complex requirements of multiple
service” when serving the United States, its agencies,
or employees; and (3) whether there is reason to protect a
pro se plaintiff “from consequences of confusion or
delay attending the resolution of an in forma
pauperis petition.” Espinoza, 52 F.3d at
842 & n.8 (internal quotation marks omitted).
the undersigned finds no policy considerations meriting
additional time for service. Plaintiff has made no request
for additional time. Defendant Scroggins is not a federal
officer, and there is no apparent confusion or delay
justifying an extension, as Plaintiff successfully served the
other defendant in this lawsuit. Further, assuming
Plaintiff's statute of limitations has expired, a
dismissal under Rule 4(m) would not necessarily bar the
refiling of Plaintiff's claims against Defendant
Scroggins. Oklahoma's “savings statute”
likely would save the claims because a Rule 4(m) dismissal
represents a failure “otherwise than on the
merits” within the meaning of title 12, section 100 of
the Oklahoma Statutes. Young v. Rios, No.
CIV-15-641-R, 2018 WL 2079509, at *2 (W.D. Okla. May 4,
2018). In other words, Plaintiff likely would be able to
refile her claims against Defendant Scroggins within one year
of dismissal without prejudice “although the time limit
for commencing the action shall have expired before the new
action is filed.” Okla. Stat. tit. 12, § 100;
see Young, 2018 WL 2079509, at *2.
the Espinoza factors weigh in favor of dismissal
under Rule 4(m), and the Court discerns no other policy
considerations that might warrant a permissive extension in
this case. Further, Plaintiff has been warned that failure to
accomplish service would result in dismissal and has been
afforded an opportunity to justify her failure to do so.
See Smith v. Glanz, 662 Fed.Appx. 595, 596, 597-98
(10th Cir. 2016).
the Court DISMISSES WITHOUT PREJUDICE all claims against
Defendant Chad Scroggins for failure of service under Rule