Heenan v. Network Publications, Inc.

181 F.R.D. 540, 77 Fair Empl. Prac. Cas. (BNA) 1166, 1998 U.S. Dist. LEXIS 17537
CourtDistrict Court, N.D. Georgia
DecidedAugust 6, 1998
DocketCiv.A. No. 1:97CV2101RWS
StatusPublished

This text of 181 F.R.D. 540 (Heenan v. Network Publications, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heenan v. Network Publications, Inc., 181 F.R.D. 540, 77 Fair Empl. Prac. Cas. (BNA) 1166, 1998 U.S. Dist. LEXIS 17537 (N.D. Ga. 1998).

Opinion

ORDER

STORY, District Judge.

This case is presently before the Court on the Magistrate Judge’s Report and Recommendation [10-1]. Defendant has filed an objection to the Report and Recommendation. Having considered the Report and Recommendation, Defendant’s objection, and the entire record, the Court enters the following Order.

STATEMENT OF FACTS1

Plaintiff was terminated from her position as a screen proofer with Defendant Network Publications, Inc. on March 18,1996. Subsequently, on July 23, 1996, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging that her discharge was based on her gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. After issuing a “no cause” finding, the agency sent Plaintiff a right to sue letter on March 22,1997.

On June 13,1997, Plaintiff filed the instant action alleging sex discrimination and retaliation in violation of Title VII. Additionally, when Plaintiff filed her Complaint, she also requested permission to proceed in forma pawperis. On July 16, 1997, Magistrate Judge Dougherty signed an order allowing Plaintiff to proceed in forma pauperis and pro se and directing that the Clerk forward service forms and summons forms to Plaintiff to be returned within thirty (30) days from the date of the order. The order was filed by the Clerk on July 17, 1997. On July 28, 1997, the order was entered on the docket by the Clerk and a copy of the complaint and the service forms and summons forms were forwarded to Plaintiff. Plaintiff returned the forms on August 27,1997.2 On September 2, 1997, the Clerk issued the summons and forwarded the documents to the Marshals for service.

Although Plaintiff initially filed the instant action pro se, Plaintiff was represented by counsel during much of the relevant period. In fact, Plaintiff retained Mr. John L. Welch, II, Esquire, on August 27,1997. On September 26, 1997, Plaintiffs attorney contacted the Clerk’s office to check the status of the service. At that time, Plaintiff indicates that her counsel was informed that the summons and complaint had been forwarded to the United States Marshals for service on Defendant. Additionally, in October, 1997, Plaintiff’s attorney again contacted the Clerk’s office in order to inquire about the pending service on Defendant. Although Plaintiffs attorney received assurances that service would be completed, it was not. Subsequently, on November 14,1997, Plaintiffs attorney spoke with the United States Marshal’s Service in order to further inquire .about the status of the service on the Defendant in this case. Ultimately, on November 21, 1997, Plaintiff was notified that Defendant had been properly served on November 18, 1997.

DISCUSSION

Defendant contends that the Complaint must be dismissed because Plaintiff failed to comply with the requirements of Rule 4(m) of the Federal Rules of Civil Procedure which provides:

“If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the Court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that [542]*542defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the Court shall extend the time for service for an appropriate period.”

The magistrate judge found that Plaintiff established “good cause” for the failure to perfect service and recommended that the Motion to Dismiss be denied. This conclusion was based on the finding that Plaintiff had been pro se through a substantial part of the 120-day period and had reasonably relied on the Marshals to properly effect service. Dumaguin v. Secretary of Health and Human Services, 28 F.3d 1218 (D.C.Cir. 1994). The Eleventh Circuit has stated “that in forma pauperis litigants should be entitled to rely on the court officers and United States Marshals to effect proper service, and should not be penalized for failure to effect service where such failure is not due to fault on the litigant’s part.” Fowler v. Jones, 899 F.2d 1088, 1095 (11th Cir.1990).

Defendant contends that the magistrate judge erred in finding “good cause.” Defendant asserts that the magistrate judge improperly relied on cases in which the plaintiff was pro se in spite of the fact that Plaintiff in the instant action retained counsel more than a month before expiration of the 120-day period for service. Defendant’s position is that the presence of an attorney in the case for Plaintiff negates Plaintiffs claim of good cause.

Defendant relies on two cases in which the plaintiff began the case pro se and retained counsel before the 120-day period expired, Madison v. BP Oil Co., 928 F.Supp. 1132 (S.D.Ala.1996) and Cox v. Arizona League of Professional Baseball Clubs, 151 F.R.D. 436 (M.D.Fla.1993). However, each of these eases can be distinguished from the ease at bar. In Madison, the plaintiff made no effort to serve the defendants within the 120-day period. In Cox, the plaintiff had obtained a 60-day extension in which to effect service. However, there was no evidence that plaintiff made any effort to effect service except for the sending of a letter requesting that the defendants acknowledge service four days before the end of the 60-day extension. In the case at bar, Plaintiff completed and returned the service documents to the Clerk. Plaintiff’s counsel checked before the deadline to confirm that the Marshals were taking care of service and was assured that they were. Thus, Plaintiff did not totally ignore her obligation.

Defendant relies on two cases in which Plaintiff was never pro se which can also be distinguished from the case at bar. In Knorr v. Coughlin, 159 F.R.D. 5 (N.D.N.Y. 1994), efforts were made by the Marshals to serve the defendants. However, the summons for several of the defendants were returned unexecuted within 76 days of the filing of the complaint. Plaintiffs counsel pursued no discovery and made no efforts to perfect service on those defendants until almost nine months had passed since the filing of the complaint. In Traina v. U.S., 911 F.2d 1155 (5th Cir.1990), plaintiff served defendant through the U.S. Marshal’s Service. However, the service was improper. The defendant filed an answer asserting as its first defense that service of process was insufficient. The answer was filed well within the 120 days allowed for proper service. However, plaintiffs counsel failed to make a diligent inquiry which would have disclosed that service had not been effected. Neither of these cases is analogous to the case at bar. Plaintiff in the case at bar was never put on notice concerning any problems with serving Defendant. She was advised that the Marshals had the papers, and Defendant would be served.

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181 F.R.D. 540, 77 Fair Empl. Prac. Cas. (BNA) 1166, 1998 U.S. Dist. LEXIS 17537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heenan-v-network-publications-inc-gand-1998.