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Mochama v. United States

United States District Court, D. Kansas

February 27, 2016

JUSTINE OSORO MOCHAMA, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL United States District Judge

         Justine Osoro Mochama, a citizen of Kenya, brings suit against the United States of America under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. Plaintiff asserts claims for assault, battery and negligence, alleging that government officials violently attacked him and failed to provide medical care during his detention on immigration matters.[1] Complaint (Doc. #1) filed July 23, 2015. See id. This matter comes before the Court on the United States' Motion To Dismiss (Doc. #8) filed March 10, 2016. Defendant urges the Court to dismiss plaintiff's claims due to untimely and/or insufficient service of process. For reasons stated below, the Court overrules defendant's motion.

         Factual And Procedural Background

         Plaintiff filed suit on July 23, 2015. Pursuant to Rule 4(m), Fed. R. Civ. P., plaintiff had 120 days - or until November 20, 2015 - to serve defendant.[2] Plaintiff did not serve defendant by that date. On November 25, 2015, Magistrate Judge Gwinne E. Birzer ordered plaintiff to show good cause why the Court should not dismiss the case for lack of prosecution under Rule 41(b), Fed.R.Civ.P. See Notice And Order To Show Cause (Doc. #5). In response to the show cause order, plaintiff asserted that counsel did not timely effect service due to excusable neglect by office staff.[3] S e e Plaintiff[']s Response To Order To Show Cause And Request For Thirty-Day Extension (Doc. #6) filed December 8, 2015. Plaintiff asserted that the statute of limitations would likely bar refiling and requested 30 additional days to effect service. See id. at 2-4.

         On January 15, 2016, the Court extended to February 5, 2016, the time for plaintiff to effectuate service. See Order (Doc. #7) at 2. In the order, the Court warned plaintiff that failure to serve defendant by that date might result in dismissal of the case without further notice. See Id. Plaintiff did not serve defendant by February 5, 2016 or request an extension of time to do so. To date, plaintiff has not filed a return of service in the case.

         On March 10, 2016, defendant filed its motion to dismiss plaintiff's claims. Defendant asserts that on February 16, 2016, i.e. 11 days after the court-extended deadline of February 5, 2016, plaintiff delivered the complaint and summons via FedEx to the United States Attorney for the District of Kansas and the United States Attorney General. See Memorandum In Support Of The United States' Motion To Dismiss (“Defendant's Memorandum”) (Doc. #9) filed March 10, 2016 at 2.

         Analysis

         Defendant urges the Court to dismiss plaintiff's claims because plaintiff did not timely or properly serve defendant. Plaintiff asks the Court to accept untimely service or allow additional time to cure defective service.

         As noted, plaintiff did not serve defendant by the extended deadline of February 5, 2016. Plaintiff provides no explanation for his failure to do so.[4] Plaintiff asks the Court to extend the time for service and either (1) recognize valid service via FedEx on February 16, 2016 or (2) allow additional time to cure the deficiency. In support of the request, plaintiff asserts that defendant has suffered no prejudice and the statute of limitations would bar plaintiff from refiling the claims.

         Where plaintiff seeks an extension of time to serve defendant, the preliminary inquiry under Rule 4(m) is whether plaintiff has shown good cause for failure to timely effect service. See Espinoza v. United States, 52 F.3d 838, 841 (10th Cir.1995). If plaintiff shows good cause, he is entitled to a mandatory extension of time. If plaintiff does not show good cause, the Court must consider whether a permissive extension of time is warranted or whether to dismiss the case without prejudice. Id. Even where plaintiff has not shown good cause, courts prefer to decide cases on their merits rather than technicalities. See McCormick v. Medicalodges, Inc., No. 05-2429, 2006 WL 1360403, at *1 (D. Kan. May 17, 2006) (citing Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982)). Thus, the Court has discretion to permit late service even absent a showing of good cause. See Turner v. Nat'l Council of State Bds. of Nursing, No. 11-2059-KHV, 2012 WL 1435295, at *5 (D. Kan. April 24, 2012).

         In evaluating whether to allow untimely service in this case, the Court is mindful of the fact that on proper motion, it could have granted a permissive extension of time even if plaintiff had not shown good cause for failure to make timely service. See, e.g., Hunsinger v. Gateway Mgmt. Assocs., 169 F.R.D. 152, 155 (D. Kan. 1996). Several factors would have guided this inquiry including whether defendant would have been prejudiced by an extension, whether defendant was on notice of the lawsuit and whether the applicable statute of limitations would bar the refiled action. Espinoza, 52 F.3d at 842; Booker v. Merck Human Health, Inc., No. 99-2069, 2000 WL 382000, at *3 (D. Kan. Jan.19, 2000). Although the Court is dismayed at counsel's repeated lack of diligence in effecting service and/or requesting an extension of time to do so, it is cognizant of the fact that dismissing the complaint would likely bar plaintiff's claims. Moreover, defendant has received notice of the lawsuit and asserts no prejudice as a result of the delay in service. Under these circumstances, the Court will allow plaintiff a short extension of time to effect valid service under under Rule 4(i)(1), Fed. R. Civ. P.[5]

         As noted, on February 16, 2016, plaintiff delivered the complaint and summons via FedEx to the United States Attorney for the District of Kansas and the United States Attorney General. The parties dispute whether delivery by FedEx constitutes valid service under Rule 4(i), Fed.R.Civ.P. See Defendant's Memorandum (Doc. #9) at 9-10; Plaintiff's Opposition (Doc. #10) at 4-6. The Court declines to resolve this dispute and instead orders plaintiff to strictly comply with the requirements of Rule 4(i)(1).

         On or before March 8, 2017, plaintiff may effect service on defendant pursuant to the procedures set forth in Rule 4(i)(1). In addition, on or before March 15, 2017, plaintiff must file proof of such service.

         The Court advises plaintiff that failure to effectuate service by March 8, 2017 and file proof of service by March 15, 2017 will result in immediate dismissal of this case without further notice. The Court further advises counsel that in the ...


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