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Coffman v. Hutchinson Community College

United States District Court, D. Kansas

November 29, 2017




         This matter is before the Court on defendant Hutchinson Community College's Motion to Quash Subpoenas (ECF No. 43) and motions by various defendants for extensions of time to file their answers to Plaintiff's Complaint (ECF Nos. 53, 54, and 59). In addition, the Court has before it Plaintiff's various responses to the Court's Show Cause Order (Order, ECF No. 38). For the reasons set forth below, Defendants' motions are GRANTED, and the Court finds Plaintiff has shown good cause for his prior failure to serve the individual Defendants with process.

         I. Background

         An in-depth discussion of the factual and procedural background of this case was included in previous orders and will not be repeated. Generally speaking, Plaintiff filed this case, acting pro se, against Hutchinson Community College (“HCC”), claiming the school and certain of its instructors and administrators violated his constitutional rights by dismissing him from HCC's nursing program.

         Since filing his case on August 7, 2017, numerous motions have been presented for the Court's consideration. In the undersigned U.S. Magistrate Judge's Memorandum and Order of September 9, 2017, Plaintiff's request for counsel and six other motions were denied (ECF No. 23). On October 3, 2017, the undersigned considered three more of Plaintiff's motions for various forms of relief, all of which were denied (Order, ECF No. 34). In addition to the motions decided by the Magistrate Judge, the District Judge denied Plaintiff's early motion for summary judgment (Order, ECF No. 19), and granted in part and denied in part defendant HCC's motion to dismiss (Order, ECF No. 28).

         II. Plaintiff's Responses to the Court's Show Cause Order (ECF No. 33)

         In Judge Crow's September 22 order, he found Plaintiff failed to properly serve the individual defendants with process (ECF No. 28, at 7, 10). In addition to this finding, Judge Crow explained, at length, the law regarding proper service of individuals (see Order, ECF No. 28, at 6-7). After 30 days had passed with no evidence of service attempts, the undersigned issued a Notice and Order to Show Cause, requiring Plaintiff to show cause in writing, on or before November 6, 2017, why she should not recommend to the District Judge that Plaintiff's claims against the five individual defendants should be dismissed with prejudice for lack of prosecution under Fed.R.Civ.P. 41(b) for his failure to serve the individual defendants (ECF No. 38).

         Soon after being ordered to show cause, Plaintiff filed returns of service evidencing successful service of process on three of the five individual defendants: Debra Heckler, Jay Ballard, and Janet Hamilton. These three defendants have now entered their appearances in this matter. Additionally, in a recent motion for extension of time (discussed below), Cindy Hoss acknowledges recent service (ECF No. 59). However, one individual defendant-Kathy Sanchez-has yet to be successfully served and has not voluntarily appeared.

         Plaintiff's first written Response to the Show Cause Order (ECF No. 50) notes he contracted with his mother to serve the summons. Although his argument is difficult to follow, it appears he claims because the individual defendants were acting as employees of the college when they allegedly violated his rights, and are currently employees, he should be able to serve the individual defendants at the college under “the master is servant clause.” (Resp., ECF No. 50, at 4.) Additionally, he seems to believe that, because he notified the president of HCC, all defendants are (or should be) aware of the claims against them (Id., at 12). Despite these beliefs, he acknowledges the Court's orders requiring him to serve the individuals at their home under K.S.A. §§ 60-303, 304(a). (Id., at 14.) He contends he “had Kathy Sanchez summons refused and returned to [him].” He argues, “[s]ince the individuals refused to be served at home that means the summons [sic] to their jobs was valid.” (Id.) He also appears frustrated that the defense intentionally failed to sign and return the Waiver of Service of Summons form sent to the HCC President's office over two months ago, and mistakenly believes he cannot comply with the Court's order to serve all defendants until the waiver is returned to him. (Id. at 17.)

         The record clearly reflects Plaintiff's attempts to serve Ms. Sanchez by certified mail. He includes his certified mail tracking slips (ECF No. 50, at 20) and claims Ms. Sanchez either failed or refused to sign for the certified mail. The return filed by Plaintiff (ECF No. 49) shows a summons was sent by certified mail to what appears to be a residential address. The return also states the summons was “sent to [her] place of business [at] Hutchinson Community College as well as [her] residence.” (ECF No. 49, at 1). The mailing was “ Received returned un-opened - [Return To Sender], [Not At This Address].” (Id.)

         Plaintiff is undoubtedly attempting to serve Ms. Sanchez as ordered, and extending him some latitude as a pro se litigant, the Court acknowledges his efforts and finds he has demonstrated good cause for his case to avoid dismissal based upon lack of service. However, given the information presented, the Court is unable to discern whether the current and prior service difficulties are a result of Plaintiff's own failure to accurately identify each defendant's valid address, or whether the defendants are simply successfully evading his attempts at service. Given the difficulties he has encountered, and permitting Plaintiff latitude as a pro se litigant, the efforts he has undertaken, and the reasonable likelihood that these defendants are, in fact, aware of the claims filed in this action, the Court finds that the interests of justice support swift service and entry of all named parties in order to allow this case to move forward.

         For these reasons, the Court finds Plaintiff has demonstrated good cause to extend the 90-day service period required under Fed.R.Civ.P. 4(m) for 45 days.[1] Plaintiff's deadline to achieve service on Ms. Sanchez is extended to December 21, 2017.

         Additionally, in its discretion as permitted under Fed.R.Civ.P. 4(c)(3), the Court ORDERS that the United States marshal or deputy marshal shall undertake service of process on individual defendant Kathy Sanchez. In the event those Defendants previously-served, or current defense counsel, may be in contact with Ms. Sanchez and could facilitate some other resolution to this issue short of the involvement of the U.S. Marshal, counsel should contact the Court as soon as possible.

         III. Defendant HCC's Motion to Quash ...

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