Jones v. Automobile Club of Southern California

26 F. App'x 740
Court of Appeals for the Ninth Circuit·Decided January 24, 2002·No. No. 00-56328; D.C. No. CV-99-01494-JTM/AJB·Published·Cited by 6 cases

Opinion

MEMORANDUM *

Felecia Jones (“Jones”) appeals the district court’s dismissal of her Title VII discrimination action against the Automobile Club of Southern California (“ACSC”) for insufficient service of process. Jones argues that the district court abused its discretion both in not giving her more time to complete service and in dismissing her case. Jones also argues that her insufficient service should be excused because she substantially complied with service of process requirements, had good cause for her insufficient service, and ACSC had actual notice of her claims. We affirm the district court in all respects.

I

We review a district court’s decision to grant an extension of time to effect service of process for abuse of discretion.1 We also review a district court’s dismissal of a case for untimely service of process for abuse of discretion.2

A. The Extension of Time to Complete Service

Jones first argues that the district court should have given her more than seven additional days in which to complete service. In support, Jones cites Myers v. Secretary of Dep’t of the Treasury,3 in which the district court granted an exten[742] sion of thirty days. Jones also cites Arroyo v. Wheat4 for the propositions that procedural dismissals are disfavored and that Rule 4 requirements should be interpreted liberally.

Jones’ argument is unconvincing. The Myers court granted a thirty-day extension without explaining the rationale for choosing that particular number of days, and never evaluated the merits of a thirty-day extension as opposed to a shorter one.5 The fact that the Myers court granted a thirty-day extension does not mean that thirty-day extensions are the norm, or that limiting an extension to only seven days is an abuse of discretion.

In addition, while a district court should indeed give the service requirements of Rule 4 “a liberal and flexible construction!,]”6 a district court also has broad discretion to either grant an extension of time, or to dismiss an action entirely, for failure to effect service.7 This discretion necessarily includes latitude to limit the length of any extension the court grants. The district court therefore had broad discretion to limit Jones’ extension to seven days, notwithstanding the “liberal and flexible” Rule 4 service requirements.

In this case, Jones had twice failed to complete service without good cause before the district court granted the extension. Jones had also been made fully aware of the law regarding Rule 4 service of process requirements and should have needed little time to prepare the process documents.8 Under these circumstances, the district court did not abuse its discretion in granting Jones only seven additional days in which to complete service.

Jones argues, however, that she simply did not have enough time to complete service, because she did not receive the district court’s order until five of the seven days had already elapsed. This argument is meritless for several reasons. First, the two remaining days provided enough time for Jones to complete service: Jones in fact prepared the documents and served them within that time period, albeit on the wrong person. Second,- under Rule 6(a), Jones actually had four business days (six calendar days) in which to complete service.9 Finally, if Jones had needed additional time to complete service, she should have made such a showing to the district court and sought another extension, but she never did.

B. The Dismissal

1. Substantial Compliance

Jones also argues that the district court erred in dismissing her case because her [743] admittedly deficient service “substantially complied” with Rule 4. This argument relies heavily on a case from this court, Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc.10

In Direct Mail, this court held that, in some cases, process may be served upon individuals other than those listed in the text of Rule 4:

[S]ervice can be made upon a representative so integrated with the organization that he will know what to do with the papers. Generally, service is sufficient when made upon an individual who stands in such a position as to render it fair, reasonable and just to imply the authority on his part to receive service.11

In Direct Mail, we concluded that service on a receptionist complied with Rule 4 for several reasons. First, because the company was quite small, the receptionist’s role “was commensurately large in the structure of the company.”12 Second, the fact that the receptionist was the only person in the office when the process server arrived demonstrated that “more than minimal responsibility was assigned to her.”13 Finally, the evidence demonstrated that the company president, a lawyer, actually received the process the next day.14

The differences between this case and Direct Mail are greater than the similarities. ACSC is not a small company and the security guard was not the only person working in ACSC’s corporate offices when Jones’ process server arrived. In addition, the guard was a contract worker, not an ACSC employee, and expressly informed Jones’ process server that he was not authorized to receive service. Under these circumstances, the facts that the guard controlled access to the building and personally delivered the documents to the corporate counsel the next day do not provide a sufficient basis for inferring that the guard had “apparent authority” or “more than minimal responsibility.” 15

2. Actual Notice

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Jones v. Automobile Club of Southern California, 26 F. App'x 740 (9th Cir. 2002).

26 F. App'x 740 (Jones v. Automobile Club of Southern California) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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