United States District Court, E.D. Wisconsin
JODIE D. SEGURA, Plaintiff,
WHITE LODGING SERVICES CORP., Defendant.
DECISION AND ORDER ON DEFENDANT'S MOTION TO
JOSEPH UNITED STATES MAGISTRATE JUDGE
D. Segura sues her former employer, White Lodging Services
Corporation, for sex discrimination and retaliation in
violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), as amended, 42 U.S.C. §
2000e, as well as for violations of the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 203, et.
seq., and Wisconsin wage laws. White Lodging moves to
dismiss Segura's amended complaint pursuant to
Fed.R.Civ.P. 12(b)(5) for untimely service of the complaint.
For the reasons that follow, the defendant's motion to
dismiss is granted.
alleges that she was employed by White Lodging from June 26,
2017 as a line cook until February 22, 2018. (Am. Compl.
¶ 5, Docket # 3.) Segura alleges that she was subjected
to unwanted physical touching of a sexual nature by her
supervisor. (Id. ¶¶ 12-22.) Segura filed a
charge with the United States Equal Employment Opportunity
Commission (“EEOC”) and received a Right to Sue
letter dated December 19, 2018. (Docket # 3-1.) Segura filed
a complaint in federal court against White Lodging on March
19, 2019 alleging Title VII violations. (Docket # 1.) Segura
subsequently filed an amended complaint on June 27, 2019
against White Lodging adding claims under the FLSA and
Wisconsin wage laws. (Docket # 3.) White Lodging was served
with the amended complaint on August 21, 2019. (Declaration
of Jesse R. Dill ¶ 9, Ex. H, Docket # 10-8.)
Civ. P. 4(m) governs the time a complaint must be served on
the opposing party. The complaint must be served on the
defendant within 90 days after the complaint is filed. Rule
4(m). If a defendant is not served within 90 days after the
complaint is filed, “the court-on motion or on its own
after notice to the plaintiff--must dismiss the action
without prejudice against that defendant or order that
service be made within a specified time.” Id.
A defendant may enforce the service of process requirements
through a pretrial motion to dismiss. Cardenas v. City of
Chicago, 646 F.3d 1001, 1005 (7th Cir. 2011) (citing
Fed.R.Civ.P. 12(b)(5)). The plaintiff bears the burden to
demonstrate that the district court has jurisdiction over the
defendant through effective service. Id. However,
Rule 4(m) also states that if the plaintiff shows good cause
for the failure, the court must extend the time for
service for an appropriate period. “Good cause”
means “a valid reason for delay, such as the
defendant's evading service.” Coleman v.
Milwaukee Bd. of Sch. Directors, 290 F.3d 932, 934 (7th
Cir. 2002). Counsel's negligence, inadvertence, or
“half-hearted efforts to serve a defendant” do
not constitute good cause for failure to serve under Rule
4(m). Floyd v. United States, 900 F.2d 1045, 1047
(7th Cir. 1990); Geiger v. Allen, 850 F.2d 330, 333
(7th Cir. 1988). If, however, the plaintiff cannot establish
good cause, the court may permissively extend the time for
service based on excusable neglect. Coleman, 290
F.3d at 934. The decision of whether to dismiss or extend the
period for service is inherently discretionary.
646 F.3d at 1005. The Seventh Circuit has noted that Rule
4(m) does not specify what factors the court must consider in
exercising its discretion; however, it may consider factors
such as these: (1) whether the expiration of a statute of
limitations during the pending action would prevent refiling,
(2) whether the defendant evaded service, (3) whether the
defendant's ability to defend would be prejudiced by an
extension, (4) whether the defendant had actual notice of the
lawsuit, and (5) whether the defendant was eventually served.
Id. at 1006-07. The court should consider the
relative hardships of the parties in arriving at its
discretionary choice between dismissal and extension of time.
does not contend that her complaint was timely served under
Fed.R.Civ.P. 4(m). Nor could she. Her complaint was filed on
March 19, 2019 (Docket # 1) and her amended complaint was
filed on June 27, 2019 (Docket # 3). The amended complaint
was not served on White Lodging until August 21, 2019-155
days after the original complaint was filed. See Del
Raine v. Carlson, 826 F.2d 698, 705 (7th Cir. 1987)
(“We do not believe, however, that the order [allowing
the complaint to be amended] started the 120 days running
again from the date when the amended complaint was filed. The
purpose of allowing complaints to be amended is to enable the
pleadings to be conformed to the developing evidence rather
than to extend the time for service indefinitely.”).
sole argument for “good cause” and primary
argument for excusable neglect is her counsel's health
complications during the spring and summer of 2019.
(Declaration of Shannon D. McDonald ¶ 3, Docket # 12.)
Segura further argues that the statute of limitations has
expired on her Title VII claim; thus, dismissal will
effectively eliminate this claim. (Docket # 11 at 3.)
Finally, she argues that White Lodging had notice of her
Title VII claims, was eventually served with the complaint,
and will not be prejudiced in its defense.
fails to show good cause for a mandatory extension of time.
Segura's counsel argues that he experienced health
complications in the spring and summer of 2019 which required
numerous trips to the hospital, surgery, and two multi-day
hospital admittances. (Docket # 11 at 2.) While I agree that
counsel's health issues present a more compelling
explanation than ordinary attorney inadvertence, I am not
convinced, in this case, that counsel's health issues
establish “good cause” to require a mandatory
extension of time. Counsel is not a sole practitioner and
could have given oversight of this case to his partner.
Nothing would have prevented counsel, or his partner, from
requesting an extension of time to serve the complaint during
this time period. However, it appears no service attempts
were ever made until August 2019. It is understandable why
Segura filed the complaint containing her Title VII claim in
March 2019-she was running up against the ninety-day deadline
that starts from receipt of her right to sue letter. However,
if she was still investigating possible FLSA and Wisconsin
wage claims, the proper procedure would have been to timely
serve the complaint and then amend the pleading.
also fails to show excusable neglect for a permissive
extension of time. Her strongest argument is that dismissal
of the complaint would bar refiling of her Title VII claim.
But this factor alone neither requires nor justifies an
extension. Cardenas, 646 F.3d at 1006. While Segura
argues that White Lodging had notice of her claim, what the
Seventh Circuit states I should consider is whether White
Lodging had actual notice of the lawsuit.
White Lodging clearly had notice of the claim-Segura filed an
EEOC charge and White Lodging was involved in the
administrative proceedings. White Lodging was copied on
Segura's right to sue letter. But there is a difference
between knowing someone has a potential lawsuit and having
actual notice of the lawsuit. For all White Lodging knew,
Segura chose not to pursue her claim any further. As White
Lodging argues, it was not conducting further investigation
during this time period or otherwise mounting a defense to
her lawsuit. (Docket # 8 at 6-7.) White Lodging argues many
potential witnesses have since left their employment with the
company, thus making it more difficult to gather information
regarding Segura's claims. (Id.) I am sensitive
to the fact that dismissing the complaint punishes Segura for
her attorney's failure. But the law provides that a
litigant is generally bound by her attorney's conduct.
Floyd, 900 F.2d at 1047 n.2. However, “the
attorney is liable to his client for malpractice if his delay
blocks the pursuit of a claim that otherwise would have
succeeded.” Id. (internal quotation and
the potential prejudice to White Lodging, coupled with
counsel's failure to explain why his partner could not
have handled this case while he was unavailable or even
minimally, to have alerted the court to the issues and
requested an extension of time in which to serve, Segura has
failed to ...