United States District Court, N.D. Alabama, Middle Division
JAMES A. BRIDGES, Plaintiff,
COOK'S PEST CONTROL, Defendant.
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE
the Court is Defendant Cook's Pest Control's
("CPC") Motion To Dismiss (the "Motion")
Plaintiff James Bridges' Complaint. (Doc. 4). CPC brought
the Motion under Rules 4(m), 12(b)(4), and 12(b)(5).
(Id. at 1). CPC filed the Motion on April 20, 2017.
(Id.). Bridges never responded. Accordingly, the
Motion is ripe for review. For the reasons stated in this
opinion, it is due to be GRANTED in part.
Rule of Civil Procedure 4(m) states:
(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), or to service of a notice under Rule 71.1(d)(3)(A).
Fed. R. Civ. P. 4(m). Federal Rule of Civil Procedure
12(b)(4) and 12(b)(5) provide that a party may move to
dismiss a claim because of "insufficient process"
or "insufficient service of process." Fed.R.Civ.P.
12(b)(4), (b)(5). "Good cause exists 'only when some
outside factor[, ] such as reliance on faulty advice, rather
than inadvertence or negligence, prevented
service.'" Lepone-Dempsey v. Carroll County
Comm 'rs, 476 F.3d 1277, 1281 (11th Cir. 2007)
(citing another source). "Even in the absence of good
cause, a district court has the discretion to extend the time
for service of process. "Id. (citing other
running of the statute of limitations does not require that a
district court extend the time for service of process."
Horenkamp v. Van Winkle & Co., 402 F.3d 1129,
1133 (11th Cir. 2005) (citing sources). "[The Eleventh
Circuit reviews] for abuse of discretion a court's
dismissal without prejudice of a plaintiffs complaint for
failure to timely serve a defendant under Rule 4(m)."
Lepone-Dempsey v. Carroll County Comm'rs, 476
F.3d at 1280.
filed his Complaint in the Northern District of Alabama on
January 12, 2018. (Doc. 4). Bridges had to serve CPC within
90 days. See Fed. R. Civ. P. 4(m). There is no
indication in CM/ECF that this service occurred within those
90 days, and CPC represents through counsel's
brief that it did not. (Doc. 4 at 1J3-4). In fact, CPC argues
that "[Bridges] has made no attempt to properly serve
[it]" which tells the Court that Bridges has not even
attempted to have CPC waive service. (See Id. at 2)
(emphasis added). After CPC filed the present Motion, Bridges
urges this Court to dismiss the case with prejudice.
(See Doc. 4 at 4-6).This is a case brought under the
Age Discrimination and Employment Act of 1967 and the
Americans with Disabilities Act of 1990. (Doc. 1). "ADEA
actions may not be brought more than 90 days after a
complainant has adequate notice that the EEOC has dismissed
the Charge." Santini v. Cleveland Clinic Fla.,
232 F.3d 823, 825 (11th Cir. 2000) (citing another source).
The same is true of actions under the ADA. See Bryan v.
U.S. Steel Corp., 428 Fed.Appx. 895, 897 (11th Cir.
2011) (citing sources). The Complaint states that Bridges
received his EEOC right to sue notice on October 14, 2017.
(Doc. 1 at 18). 90 days from October 14, 2017, is January 12,
2018. Bridges filed his Complaint on that date.
(Id.). CPC urges this Court to exercise its
discretion to dismiss the case with prejudice given the time
bar. (See Doc. 4 at 4). CPC cites to numerous
sources saying that this is a "permissible and
warranted" course of action. (See Id. at 5-6)
Court is considering "specifically whether it should
allow Plaintiff an extension in the light... of the statute
of limitations." Melton v. Wiley, 262 Fed.Appx.
921, 924 (11th Cir. 2008). The Court could grant Bridges
additional time to serve CPC, without a showing of good
cause. See Lepone-Dempsey, 476 F.3d at 1281 (citing
sources). However, Bridges has not even attempted to show
good cause, or any cause at all. Since Bridges filed the
Complaint and paid the filing fee, CM/ECF reflects total
"radio silence" from him. (See CM/ECF). In
that time, Bridges could have served CPC, asked the Court for
an extension of time to serve CPC, provided evidence CPC was
evading service, responded to the Motion showing good cause,
or even simply responded to the Motion. In other words,
Bridges, who is represented by counsel, should have done
Court suspects that the statute of limitations has run in
this case. However, Rule 4(m) contemplates a
dismissal without prejudice, and that outcome is sufficient
here. See Fed. R. Civ. P. 4(m). Whether the statute
of limitations has run is best left for another day - should
Bridges file this lawsuit again - when it can be briefed and
argued by the parties.