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Kennedy v. Warren Properties, LLC

United States District Court, S.D. Alabama, Southern Division

September 25, 2017

D. ANGELINA KENNEDY, Plaintiff,
v.
WARREN PROPERTIES, LLC, et al., Defendants.

          ORDER

          KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE.

         This 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. 49).[1]

         I. Background

         On 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.

         Kennedy 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.[2] At that time, sixteen defendants had either been served with the summons and complaint or had joined in a dispositive motion.[3]

         Kennedy 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).

         II. Statement of the Law

         Rule 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).

         In this 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 ...

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