Gaston v. Coca Cola Bottling Company

• Court: District Court, E.D. Arkansas
• Decided: September 20, 2021
• Docket: 4:20-cv-01451
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

MICHAEL GATSON PLAINTIFF

vs. Case No. 4:20 cv 1451 JM

ARKANSAS DEPARTMENT OF THE MILITARY DEFENDANT

ORDER

Pending before the Court is Plaintiff’s motion to extend time for service of his employment discrimination complaint. Because the Court finds that Plaintiff has not shown good cause for his failure to serve the complaint, the motion will be denied. This case is fraught with infirmities. It was filed on December 11, 2020, 99 days after the EEOC notice of right to sue letter was issued. The named defendant was Coca Cola Bottling Company (though the complaint also stated that “Defendant Pulaski is an employer” and that remedies were sought are pursuant 42 U.S.C. §§1981, 1983 as well as §2000(e).) The attorney signing the complaint was Lawrence Walker. He gave the address and phone number of John W. Walker, P.A. when he signed the complaint; he left the firm sometime in March 2021. (Doc. 7) and did not provide the Court or, it appears, his client with his new contact information. On September 9, 2021, the Court entered an order advising Plaintiff that his case would be dismissed unless proof of service was filed by Friday, September 17, 2021 or unless Plaintiff was able to establish good cause for the failure to timely serve the defendant. (Doc. No. 4). On September 14,2021, Austin Porter, Jr. entered an appearance on behalf of Plaintiff, and the following day he filed an amended complaint naming the Arkansas Department of the Military as the defendant (and correcting Plaintiff’s surname from “Gaston” to “Gatson”). In his motion for extension of time, Plaintiff points out the errors in the complaint made by his counsel Lawrence Walker (who as of this time has not been relieved as counsel of record). He states that he was not aware that the wrong defendant had been named and that he had made numerous attempts to get in contact with Lawrence Walker. He had not known that Lawrence Walker had left John W. Walker, P.A. in March of 2021. Plaintiff contacted Mr. Porter in

August of 2021 but Mr. Porter had undergone surgery on August 10, 2021 and was unable to help at that time. Plaintiff again contacted Mr. Porter on or about September 13, 2021 and he entered an appearance at this time. As explained by the Eighth Circuit “under Rule 4(m) [of the Federal Rules of Civil Procedure], if the district court concludes there is good cause for plaintiff's failure to serve within [90] days, it shall extend the time for service. If plaintiff fails to show good cause, the court still may extend the time for service rather than dismiss the case without prejudice.” Kurka v. Iowa Cty., Iowa, 628 F.3d 953, 957 (8th Cir. 2010) (quoting Adams v. AlliedSignal Gen. Aviation Avionics, 74 F.3d 882, 887 (8th Cir.1996)). Good cause is not defined in Rule 4(m); the standard has been called “necessarily amorphous” and is dependent on the facts of each case. Colasante

v. Wells Fargo Corp., 81 Fed.Appx. 611, 613 (8th Cir.2003) (per curiam) (unpublished) (citing Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d 932, 934 (7th Cir.2002)). However, “[a] showing of good cause requires at least ‘excusable neglect’—good faith and some reasonable basis for noncompliance with the rules.” Adams, 74 F.3d at 887. Good cause has been found when “[1] the plaintiff's failure to complete service in timely fashion is a result of the conduct of a third person, typically the process server, [2] the defendant has evaded service of the process or engaged in misleading conduct, [3] the plaintiff has acted diligently in trying to effect service or there are understandable mitigating circumstances, or [4] the plaintiff is proceeding pro se or in forma pauperis.” Kurka v. Iowa Cty., Iowa, 628 F.3d 953, 957 (8th Cir. 2010) (quoting 4B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1137, 42 (3d ed.2002). Mr. Gatson has contacted Court staff about his inability to get in touch with Lawrence Walker, and the Court is sympathetic to the trouble this plaintiff has been through on account of

Mr. Walker. However, the circumstances presented to not satisfy the standard for a finding of good cause to extend the time to serve the Arkansas Department of the Military with the amended complaint. This circuit has recognized as “well-established [the] principle that a party is responsible for the actions and conduct of his counsel and that, under appropriate circumstances, dismissal or default may be entered against a party as a result of counsel's actions.” Denton v. Mr. Swiss of Missouri, Inc., 564 F.2d 236, 241 (8th Cir. 1977) (citing to Link v. Wabash Railroad, 370 U.S. 626, 633-34 (1962); see also Everyday Learning Corp. v. Larson, 242 F.3d 815 (8th Cir. 2001). While the results can be harsh, the Eighth Circuit has frequently held that “[l]itigants choose counsel at their peril.” Inman v. Am. Home Furniture Placement, Inc., 120 F.3d 117, 118 (8th Cir. 1997); Everyday Learning Corp. v. Larson, 242 F.3d 815 (8th

Cir. 2001) (citations omitted). As recognized in Inman, “[i]f they were truly diligent litigants who were mislead and victimized by their attorney, they have recourse in a malpractice action.” Inman, at 119 (citing Link at 634.n. 10). The Court finds that Lawrence Walker’s failure to establish any efforts to serve the original defendant in this case does not establish good cause to extend the time to serve the Defendant first-named in this action 377 days after the EEOC issued Plaintiff a determination and a notice of right to sue. Plaintiff’s Motion for Extension of Time to Accomplish Service (Doc. 7) is DENIED. In the absence of proof of timely service, this case is dismissed with prejudice. ! Dated this 20th day of September, 2021. (| RICT JUDGE

T]he Eighth Circuit has held that, under Title VII, a dismissal without prejudice operates to leave a plaintiff as if no action had been filed. /d. (citing Moore v. St. Louis Music Supply Co., Inc., 539 F.2d 1191, 1194 (8th Cir. 1976)). Thus, any dismissal of a Title VII or ADEA case that occurs, as it did here, more than 90 days after the right to sue letter issued is, in substance, a dismissal with prejudice.” Faulkner v. Townsell, No. 4:18-CV-00353 KGB, 2020 WL 2818512, at *8 (E.D. Ark. May 28, 2020).