United States District Court, S.D. Alabama, Southern Division
D. ANGELINA KENNEDY, Plaintiff,
WARREN PROPERTIES, LLC, et al., Defendants.
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE.
action is before the Court on Plaintiff D. Angelina
Kennedy's Motion to Extend Process and Service (doc. 14),
the Court's Order to show cause why this action should
not be dismissed without prejudice as to certain un-served
Defendants (doc. 41), and Plaintiff's response (doc.
March 10, 2017, Kennedy filed a complaint in this Court (doc.
1). On April 4, 2017, she amended her complaint (doc. 4).
Kennedy alleges violations of the Fair Housing Act, 42 U.S.C.
3601, et seq, based on race, violations of §
3617 of the Act which makes it unlawful to coerce, intimidate
or threaten a person in the exercise of their rights
protected by the Act, violations of the Equal Protection
Clause of the 14th Amendment (“Class of One”
based on race), criminal conspiracy under 18 U.S.C. §
241, and civil conspiracy under 42 U.S.C. § 1985(2).
Kennedy seeks to “recover damages pursuant to 42 U.S.C.
§ 1983 (doc. 4). In support Kennedy sets forth specific
actions taken by the individual and corporate Defendants from
2002 until 2012, before Kennedy moved out of Warren House
Apartments in February 2013.
identified twenty-four defendants. On June 22, 2017, after
unsuccessful attempts to obtain Waivers of Service, summons
issued to twenty-two defendants (doc. 12). Summons were not
issued as to two defendants. At that time, sixteen defendants
had either been served with the summons and complaint or had
joined in a dispositive motion.
moved the Court for an extension of time to serve the
remaining six defendants: Brandi Sheppard, Cedrick Sellers,
Angela Santos, Hazel Lewis, Duncan Cunningham, and Gary Alan
Moore (doc. 14). In compliance with Rule 4(m) of the Federal
Rules of Civil Procedure, the Court notified Kennedy that the
Court intended to dismiss without prejudice the claims
against these un-served Defendants, unless Kennedy showed
good cause why the action should not be dismissed without
prejudice as to those Defendants (doc. 41). Kennedy has now
filed her response (doc. 49).
Statement of the Law
4(m) of the Federal Rules of Civil Procedures defines the
time limit for service of the summons and complaint. Rule
4(m) sets forth as follows:
(m) Time Limit for Service. If 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. But if
the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period.
This subdivision (m) does not apply to service in a foreign
country under Rule 4(f), 4(h)(2), or 4(j)(1).
Fed. R. Civ. P. 4(m).
circuit, the district court
has a great deal of discretion in extending the time for
service of process. Lepone-Dempsey v. Carroll Cnty.
Comm'rs., 476 F.3d 1277, 1281 (11th Cir.
2007)(“[W]hen a district court finds that a plaintiff
fails to show good cause for failing to effect timely service
pursuant to Rule 4(m), the district court must still consider
whether any other circumstances warrant an extension of time
based on the facts of the case.”) Indeed, the Eleventh
Circuit has concluded “ ‘[g]ood cause' exists
‘only when some outside factor[, ] such as reliance on
faulty advice, rather than inadvertence or negligence,
prevented service.' ” Anderson v. Osh Kosh
B'Gosh, 255 Fed.Appx. 345, 347 (11th Cir. 2006).
Robinson v. Alabama State Univ., 2017 WL 2644069, at
*1 (M.D. Ala. June 5, 2017), report and recommendation
adopted, 2017 WL 2643615 (M.D. Ala. June 19, 2017).
Thus, under Rule 4(m), the Court must first determine if good
cause exists for an extension of time. If good cause exists,
the Court must extend the time for service. If, however, the
Court finds that Plaintiff has failed to demonstrate good
cause for the failure to effect service, the Court may
consider whether, in its ...