United States District Court, D. Kansas
CLARA R. FULLER, Plaintiff, s
STATE OF KANSAS, DEPARTMENT OF CHILDREN & FAMILIES, et al., Defendants.
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE
September 13, 2018, the court entered an Order directing
plaintiff to show cause why the court should not dismiss the
claims against the individual defendants in this case for
failure to prosecute. Doc. 70. Plaintiff filed a timely
response titled “Affidavit to Serve Defendants in Their
Individual Capacities.” Doc. 72. Now, the court
considers plaintiff's response. For reasons explained
below, the court finds that plaintiff has shown good cause
and declines to dismiss plaintiff's claims against the
individual defendants for failure to prosecute under Federal
Rule of Civil Procedure 41(b).
service has eluded plaintiff. Plaintiff filed suit in June
2016, alleging that defendants-the Kansas Department of
Children and Families (“DCF”) and four individual
employees-had discriminated against her. Doc. 33. Two years
later, in a March 2018 Order, the court found that plaintiff
never had served the DCF employees in their individual
capacities properly. Doc. 47 at 4. At that time, the court
directed the Clerk of the Court to prepare and issue
summonses for the DCF employees in their individual
capacities. Id. at 5. The court also ordered
plaintiff to provide the Clerk with any information that
would allow the Marshals Service to serve the DCF employees
personally or at their homes. Id. Plaintiff did not
September 2018, the court ordered plaintiff to show cause, in
writing, why the court should not dismiss the claims against
the individual defendants for failure to prosecute. Doc. 70.
Plaintiff responded in time. Doc. 72. Plaintiff represents
that she never received the March 2018 Order, and thus, she
did not know the court had asked her to provide residential
addresses to serve defendants. Doc. 72 at 1. But, upon
receipt of the court's Show Cause Order, plaintiff
researched online and found addresses for the four individual
defendants. Id. at 1-2. Plaintiff advises that she
cannot be sure the addresses are correct, but that each
defendant worked in Kansas when plaintiff filed suit.
Id. at 2.
Fed.R.Civ.P. 41(b), “a district court may dismiss an
action with prejudice if the plaintiff fails to comply with
[the Federal Rules of Civil Procedure] or any order of
court.” Olsen v. Mapes, 333 F.3d 1199, 1204
(10th Cir. 2003) (alteration in original) (internal citations
omitted). To decide if dismissal is warranted, the Tenth
Circuit directs the court to consider the following factors:
“(1) the degree of actual prejudice to the defendant;
(2) the amount of interference with the judicial process; (3)
the culpability of the litigant; (4) whether the court warned
the party in advance that dismissal of the action would be a
likely sanction for noncompliance; and (5) the efficacy of
lesser sanctions.” Id. (quoting Ehrenhaus
v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992))
(further citation omitted). The court, finding the third
factor most relevant, addresses it first.
culpability of the litigant, the Circuit has explained that
when a plaintiff proceeds in forma pauperis, the district
court is required to serve process for plaintiff.
Id. at 1204 (first citing 28 U.S.C. § 1915(d);
then citing Fed R. Civ. P. 4(c)(2)). So, “good cause
exists to excuse a plaintiff's failure to serve where the
plaintiff is proceeding in forma pauperis and is therefore
entitled to rely on service by the U.S. Marshal.”
Id. (collecting cases). But, good cause does not
exist where defective service results from plaintiff's
inadequate or inaccurate information or lack of diligence.
See Searles v. Werholtz, No. 06-3198-JAR, 2010 WL
4861123, at *2 (D. Kan. Nov. 16, 2010) (citations omitted).
In Searles, our court found that a plaintiff had
neither been diligent nor made a good faith effort to assist
the Marshals Service's efforts to effect service, in
part, because plaintiff failed to attempt to locate the
unserved defendants in response to the court's Order to
Show Cause. See Id. (comparing Olsen v.
Mapes, 333 F.3d 1199, 1205 (10th Cir. 2003), where
“plaintiffs demonstrated ‘sincere efforts' to
comply with service rules and . . . the record was
‘replete with Plaintiffs' attempts to comply'
with service rules, ” id. at *3 n.28 (quoting
Mapes, 333 F.3d at 1205)).
Ms. Fuller proceeds pro se in forma pauperis (Doc. 4), so as
the court has explained, she is entitled to rely on the U.S.
Marshals to make service. Ms. Fuller contends that she did
not comply with the court's March 2018 Order to help
effectuate service because she did not receive
Doc. 72 at 1. But, upon receipt of the court's Show Cause
Order, plaintiff responded promptly to it and provided the
residential addresses for the four individual defendants.
Id. at 1-2. And, plaintiff also explained that,
though she cannot ensure the addresses are correct, all the
defendants worked in Kansas when she filed suit. Id.
at 2. So, unlike the plaintiff in Searles, Ms.
Fuller has responded to the court's Show Cause Order.
although plaintiff is entitled to rely on service by the U.S.
Marshal, she has demonstrated sincere efforts to comply with
the court's orders. The Tenth Circuit found it persuasive
that the plaintiffs in Mapes had included a
“Proof of Service” attachment on their filings,
which indicated that those papers were mailed to the
defendants or their counsel. Mapes, 333 F.3d at
1205. Here, Ms. Fuller consistently has included a
“Certificate of Service, ” which indicates that
she has served copies of her filings on counsel for the
individual defendants. The court finds that this factor
weighs against dismissing plaintiff's claims.
remaining factors do not favor a different result. First, as
the court has observed, “it seems undisputed that all
defendants know about the current lawsuit, ” (Doc. 47
at 5), and so the prejudice to defendants factor does not
favor dismissal. Second, it is true that the judicial process
has suffered delay-Ms. Fuller filed this case in June
2016-and so, this factor favors dismissal. But, third, the
efficacy of lesser sanctions is moot, as Ms. Fuller responded
in time to the court's Show Cause Order and responded
with appropriate information. The court thus finds-under the
Ehrenhaus factors-that the court should not dismiss
court emphasizes that Ms. Fuller must bear responsibility to
discover and submit information necessary to effectuate
service. See Searles, 2010 WL 4861123, at *4. So, if
the addresses Ms. Fuller provided are incorrect, she has a
continuing duty to find and provide correct addresses.
Because Ms. Fuller has provided addresses for the defendants,
the court does not consider whether plaintiff also has
complied with Kan. Stat. Ann. § 60-304(h) in her
“Affidavit to Serve Defendants in Their Individual
Capacities.” Kan. Stat. Ann. § 60-304(h); see
also Id. at § 53-601.