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Booth v. Trident Literacy Association, Inc.

United States District Court, D. South Carolina

July 15, 2016

Ronald Booth, Plaintiff,
v.
Trident Literacy Association, Inc., Defendant.

          Ronald Booth, Plaintiff, represented by Chalmers Carey Johnson.

          Trident Literacy Association Inc, Defendant, represented by Nosizi Ralephata, Turner Padget Graham and Laney.

          REPORT AND RECOMMENDATION

          BRISTOW MARCHANT, Magistrate Judge.

         This action has been filed by the Plaintiff asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seg. Plaintiff is a former employee of the Defendant.

         The Defendant filed a Rule 12 motion to dismiss, with accompanying exhibits, on March 16, 2016. Plaintiff filed a memorandum in opposition to the Defendant's motion on March 31, 2016, to which the Defendant filed a reply memoranda on April 11, 2016. Defendant's motion is now before the Court for disposition.[1]

         Discussion

         Plaintiff alleges in his Complaint that he was employed by the Defendant from July 21, 2014 to approximately July 30, 2014. Complaint, ¶ 1.3. Plaintiff alleges that on or about July 30, 2014, he was terminated by the Defendant on the basis of his religion (Christian) in violation of Title VII. Id., ¶¶ 2.8, 3.1-3.4. Plaintiff further alleges that, prior to filing his Complaint, he received a Right to Sue notice from the EEOC on September 8, 2015, and that this action was thereafter filed within ninety (90) days. Id., ¶ 1.4.[2] A review of the docket confirms that this action was filed on December 3, 2015, which was eighty-six (86) days after Plaintiff's receipt of the Right to Sue notice from the EEOC.

         Rule 4(m), Fed.R.Civ.P. provides that "[i]f 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... but if the Plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period."[3] Here, the parties do not dispute that the time for service began to run on December 3, 2015; therefore, the ninety (90) day period for service provided by Rule expired on March 2, 2016. However, the Defendant asserts in its motion, and Plaintiff does not dispute, that the Defendant was not served with process in this case by March 2, 2016, [4] and that in fact, as of the filing of the Defendant's motion to dismiss on March 16, 2016, the Defendant had still never been served with process in this case.

         Both parties have submitted exhibits relating to this issue with their briefs, which the Court has considered in reaching a decision with respect to whether Plaintiff has shown good cause for his failure to timely serve the Defendant such that the time for service should be extended for an appropriate period.[5] See Rule 4(m). These exhibits reflect that on or about December 16, 2015, Plaintiff's counsel requested waiver of service from the attorney who had represented the Defendant in the proceedings before the EEOC, See Defendant's Exhibit C (Court Docket No. 5-3, p. 2); Plaintiff's Exhibit (Court Docket No. 6-1, p. 2). Defendant's EEOC counsel had previously indicated he could waive service of the summons and Complaint if Plaintiff's counsel sent him the requisite forms. See Defendant's Exhibit C (Email dated 12/9/15); Plaintiff's Exhibit (Court Docket No. 6-1, p. 1). However, Defendant's EEOC counsel responded to Plaintiff's counsel sending him the necessary waiver documents by telling Plaintiff's counsel that the defense of this case had been transferred to John Wilkerson of the Turner Padget law firm in Charleston, South Carolina. See Defendant's Exhibit C (Court Docket No. 5-3, p. 1); Plaintiff's Exhibit (Court Docket No. 6-1, pp. 2-3). EEOC defense counsel further indicated in this email that he had forwarded the waiver of service material he had received from Plaintiff's counsel to Attorney Nosizi Ralephata with the Turner Padget firm, and that Plaintiff's counsel should direct all further correspondence, inquiries, missives, communications, and calls to her. Both Wilkerson and Ralephata were copied on that email. Id . Plaintiff responded that same day (December 16, 2015) thanking EEOC defense counsel for forwarding his email, and stating that "I'll look for a response from Ms. Ralephata". However, Plaintiff's counsel did not copy either Wilkerson or Ralephata on that email See Defendant's Exhibit C (Court Docket No. 5-4, p. 2); Plaintiff's Exhibit (Court Docket No. 6-1, p. 4).

         Plaintiff's counsel does not dispute that, thereafter, he did not himself ever send waiver of service documents to Turner Padget, nor did he ever call or engage in any other communications with that law firm. Plaintiff's counsel also acknowledges in his brief that neither EEOC defense counsel nor anyone at Turner Padget ever signed and returned the waiver. On March 4, 2016 (which was now after the service deadline). Plaintiff's counsel emailed EEOC defense counsel that he had never gotten a response from Turner Padget, that he was about to go ahead and serve the Defendant, and "just wanted to check with you before I incur costs that would be taxed against your client". See Defendant's Exhibit D (Court Docket No. 5-4, p. 2); Plaintiff's Exhibit (Court Docket No. 6-4, p. 4). It is not clear why Plaintiff's counsel chose to contact the attorney who he knew was not representing the Defendant in this case, rather than Turner Padget. Further, no counsel from Turner Padget is showed as being copied on this email.

         Georgia EEOC counsel responded to Plaintiff's counsel that same day, stating: "I suggest you contact Nosizi Ralephata one more time before serving, as I recall she was prepare[d] to save you all costs as to that. I have cc'ed her hereon. If you cannot get ahold of her, please let me know". Both Ralephata and Wilkerson are shown as being copied on this email. See Defendant's Exhibit D (Docket No. 5-4, p. 1); Plaintiff's Exhibit (Docket No. 6-1, p. 4). However, Plaintiff's counsel has provided no documentation to show, nor does he even argue, that he thereafter ever contacted defense counsel at Turner Padget regarding either serving the Defendant or obtaining a waiver of service. Cf. Mende v. Milestone Tech, Inc., 269 F.Supp.2d 246, 251 (S.D.N.Y. 2003) ["When a defendant raises a Rule 12(b)(5) challenge to the sufficiency of service of process, the Plaintiff bears the burden of proving its adequacy".] (internal citations omitted). Plaintiff's counsel further concedes in his filings that, as of the filing of his brief on March 31, 2016, he had still never served the Defendant with process in this case.

         In his response to the Defendant's motion to dismiss, Plaintiff's counsel argues that, since the time for service has expired and this case has never been served on the Defendant, that "technically, the case has not been commenced", and that it "is Plaintiff's right and place to decide when and if to commence this case at this point". Plaintiff's Brief, p. 1. Plaintiff's counsel then faults the Defendant for even filing this motion, arguing that the "fact that the Defendant's attorneys have opted to enter into the Court and raise these issues by filing this unnecessary motion to dismiss seems frivolous and a waste of its client's resources, the Court's time, and the undersigned's". Id . Plaintiff's counsel's argument appears to be based on his belief that, since the case has never been served, it is no longer a pending case and therefore the Defendant's motion was unnecessary. However, this argument is without merit. This is still a pending case on the docket of this Court, and since Plaintiff has not himself filed a voluntary dismissal of the case pursuant to Rule 41(a), Fed.R.Civ.P., the Defendant's motion for dismissal under Rule 4(m) is entirely proper.

         As for whether Plaintiff has shown good cause for his failure to timely serve the Defendant such that the time for service should be extended for an appropriate time (as allowed under Rule 4(m)), the undersigned does not find that such an extension is warranted under the facts of this case. Plaintiff asks the Court to "consider equitable tolling at this point" and allow service of process at this time because he "relied on [EEOC counsel's] word that the waiver would be granted and service accepted....". Plaintiff's Brief, p. 2. However, that is not what the documents submitted reflect, nor does EEOC counsel's statement of December 9, 2015 that, if Plaintiff's counsel would like to send him the waiver forms he would "review [them] and get back to" Plaintiff's counsel, excuse Plaintiff's counsel's own actions in failing to serve the Defendant, not only within 90 days of the filing of this case, but ever. The documents provided to the Court clearly show that after Plaintiff's counsel forwarded the waiver documents, the Defendant's EEOC counsel advised Plaintiff's counsel that he was not going to be representing the Defendant in this case, told Plaintiff's counsel who was representing the Defendant, that he had forwarded the waiver documents to the Defendant's new counsel, and told Plaintiff's counsel to contact them about obtaining a waiver of service. However, Plaintiff's counsel never thereafter contacted the Defendant's case counsel, even though he clearly knew who was representing the Defendant in this case, and when he did finally send another email relating to service in this case (which was by that time after the time for service had expired), he did not send that email to the Defendant's attorney, but to the Defendant's prior EEOC counsel who he clearly knew was not representing the Defendant in this case. He did not even copy the Defendant's case counsel on that email, nor did he then ever follow up with the Defendant's case counsel about this issue, even though the Defendant's prior EEOC counsel expressly advised him to do so.

         There is no justification for granting Plaintiff the benefit of equitable tolling based on these facts. See Eaton v. Digital Equipment Corp., 16 Fed.Appx. 95, 96 (4th Cir. 2001) [Equitable tolling appropriate only "where the defendant has wrongfully deceived or misled the plaintiff [or] applies where the defendant engages in intentional misconduct to cause the plaintiff to miss a filing deadline"]; Irwin v. Department of Veteran's Affairs, 498 U.S. 89, 96 (1990) [Equitable tolling not appropriate where "the claimant failed to exercise due diligence in preserving his legal ...


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