Opinion
Case No. CIV-19-511-SM
01-31-2020
CHERYL RODGERS, Plaintiff, v. ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
I. Procedural posture.
On June 4, 2019, Cheryl Rodgers (Plaintiff), appearing through an attorney (Counsel), initiated this action for judicial review of the Commissioner of Social Security's final decision that she was not "disabled" under the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). Consistent with this Court's General Order, see GO-16-4, In Re: Social Security Cases, the Clerk of Court "randomly assigned, upon filing," this case to the undersigned, a "U.S. Magistrate Judge of this District," id. ¶ 1, to "conduct all proceedings in the case unless and until a District Judge is assigned to the case pursuant to th[at] order." Id. ¶ 2. The case remains in that posture.
The general order contemplates that the undersigned will issue necessary orders during this interim period and provides that "[i]n the event of an appeal from a Magistrate Judge's order prior to the assignment of a District Judge or resolution of the consent process, the appeal shall be to the grand jury/duty District Judge." Id. But, here, the "necessary order[ ]," id., is case-dispositive: dismissal due to Plaintiff's failure to serve Defendant. The undersigned, however, may not "involuntarily dismiss an action" by order, 28 U.S.C. 636(b)(1)(A), and, consequently, proceeds by Report and Recommendation. Id.
After careful review, the undersigned recommends that this Court "dismiss [Plaintiff's] action without prejudice against [ ] defendant." Fed. R. Civ. P. 4(m).
II. History.
A. Order to show cause for the failure to serve Defendant.
When the ninety-day period allowed under Fed. R. Civ. P 4(m) for service in this matter expired on September 2, 2019, Plaintiff had not made proof of service as required under Fed. R. Civ. P 4(l)(1), and her complaint had not been answered. Therefore, on November 6, 2019, the undersigned ordered that "unless on or before . . . November 26, 2019, '[P]laintiff show[ed] good cause for the [apparent, given the absence of proof,] failure' to serve Defendant," Fed. R. Civ. P. 4(m), the undersigned would recommend dismissal of the action. Doc. 7.
Because Plaintiff could have served Defendant at the end of the ninety-day service-period, the undersigned allowed the sixty-day answer-period to expire before ordering Plaintiff to show cause.
B. Plaintiff's response to the show cause order.
Plaintiff responded as ordered on November 26, 2019. See Doc. 8. She "apologize[d] to the Court for failing to comply with Fed. R. Civ. P. 4(m)," id. at 1, and gave these reasons for her failure:
Plaintiff does not disclaim Counsel's status as her agent.
During the past year, Plaintiff's counsel has faced considerable personal and financial challenges resulting from his divorce litigation. Additionally, as the former spouse was also Plaintiff's counsel's paralegal, the personal divorce matter significantly impacted counsel's law practice. Though this impact did not affect counsel's ability to continue practicing during the winter and spring of this year. Beginning in the mid-summer, Plaintiff's counsel began experiencing a sharp decline in his physical health, prompting medical testing and changes in medications. The additional health problems, coupled with Plaintiff's counsel lacking any assistance, have led to the unintentional missing of deadlines. Counsel's 14-year history of practicing before the Court shows these errors were never a standard part of his manner of practice. When it became apparent to Plaintiff's counsel his health negatively affected his ability to practice law, he stopped taking new cases. However, Plaintiff's counsel has several cases that initiated before the health issues became apparent.Id. at 1-2.
Nonetheless, Plaintiff also advised that "[a]s of the past month," Plaintiff's counsel's health has stabilized, allowing him to continue handling the remaining open cases" and that he [wa]s ready to file proof of service with the Court." Id. at 2. "Plaintiff's counsel ask[ed] the Court to consider the stated reasons offered and allow him to file the proof of service with the Court." Id.
C. Order to supplement response to the show-cause order.
Plaintiff's response was ambiguous. See Doc. 9. The "apolog[y] to the Court for failing to comply with Fed. R. Civ. P. 4(m)," Doc. 8, at 1, seemed a clear acknowledgment that Plaintiff had not served Defendant within ninety days after filing the complaint. See Doc. 9, at 1. Yet the statement that Plaintiff "[wa]s ready to file proof of service with the Court," coupled with the request that "the Court . . . consider the stated reasons offered and allow [Plaintiff] to file the proof of service with the Court," Doc. 8, at 1-2 (emphasis added), reasonably suggested the possibility that Plaintiff had served Defendant in a timely manner but had neglected to file proof of that service. See Doc. 9.
The undersigned ordered Plaintiff to clarify her position by supplemental response, pointing to the significance of her failure to disclose whether the proof of service Plaintiff was now ready to file was "proof of timely service, that is, of service within the ninety-day period." Id. at 2. The undersigned explained that, "if so, Defendant's failure to answer Plaintiff's complaint [would be] implicated" but "if Counsel [had] purported to serve Defendant after the expiration of the ninety-day period, he [had done] so without obtaining an extension of time from this Court." Id. The undersigned cited Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995) (describing Rule 4(m)'s two-step inquiry). See Doc. 9, at 2.
D. Response to the order to supplement.
In response, Plaintiff acknowledged she "did not serve Defendant within ninety days of filing" and "admit[ted] to serving Defendant after the expiration of the ninety-day period without first seeking an extension of time from the Court." Doc. 10, at 1. Citing Espinoza, 52 F.3d at 841, she "ask[ed] the Court to exercise its discretion in allowing [her] to effect service upon Defendant." Doc. 10, at 1.
As support, Plaintiff submitted that "[i]n addition to the reasons stated in Plaintiff's Response to the Order to Show Cause [ECF No. 8], dismissing Plaintiff's case without prejudice would preclude her from pursuing her case further" because, under 42 U.S.C. § 405(g), "Plaintiff may only seek judicial review within sixty days after the mailing of the Commissioner's final decision notice." Id. Pointing to this "sixty-day statute of limitations of 42 U.S.C. § 405(g)" that "bars [her] from refiling her case," id. at 2, and citing Espinoza, 52 F.3d at 842, Plaintiff argued that relief under Rule 4(m) may be warranted as a result of the bar. She "ask[ed] the Court to exercise its discretion to permit Plaintiff to serve Defendant in her case." Doc. 10, at 2.
III. The two-step inquiry.
Tenth Circuit law governing this matter holds:
The preliminary inquiry to be made under Rule 4(m) is whether the plaintiff has shown good cause for the failure to timely effect service . . . . If good cause is shown, the plaintiff is entitled to a mandatory extension of time. If the plaintiff fails to show good cause, the district court must still consider whether a permissive extension of time may be warranted. At that point the district court may in its discretion either dismiss the case without prejudice or extend the time for service.Espinoza, 52 F.3d at 841.
A. Step-one—mandatory extension of time.
A "plaintiff who seeks to rely on the good cause provision must show meticulous efforts to comply with [Rule 4(m)]." In re Kirkland, 86 F.3d 172, 176 (10th Cir. 1996) (citing Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1536, 1438 (10th Cir. 1994)). Plaintiff has not described any such efforts in her case. At best, she has pointed to Counsel's explanations for the failure, but "attorney inadvertence" does not constitute good cause. Cox v. Sandia Corp., 941 F.2d 1124, 1126 (10th Cir. 1991).
In sum, Plaintiff has not established good cause for her failure to serve Defendant in this case and "is [not] entitled to a mandatory extension of time." Espinoza, 52 F.3d at 841.
See United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) ("[T]heories raised for the first time in objections to the magistrate judge's report are deemed waived.").
B. Step-two—permissive extension of time.
Plaintiff has specifically invoked the second step of the inquiry, asking this Court "to exercise its discretion in allowing [her] to effect service upon Defendant," Doc. 10, at 1, and "to permit [her] to serve Defendant in her case." Id. at 2. That is, Plaintiff is seeking a permissive extension of time.
Under certain factors, "a plaintiff who has failed to show 'good cause' for a mandatory extension of time may still be granted a permissible extension of time within the district court's discretion." Espinoza, 52 F.3d at 841. The first factor the court considers is whether the statute of limitations would bar the action if refiled. Id. at 842. The second is whether Plaintiff has unsuccessfully attempted to serve the United States. Id. Third, as to pro se litigants, "[t]he district court should also take care to protect pro se plaintiffs from consequences of confusion or delay attending the resolution of an in forma pauperis petition." Id. at 842 n.8 (internal quotation marks omitted).
Nothing in the record suggests that Plaintiff made an unsuccessful attempt to serve the United States in this case. And, because Plaintiff appears through Counsel, the factor bearing on the need to safeguard pro se plaintiffs does not apply here. Instead, as noted, Plaintiff submits that "dismissing [her] case without prejudice would preclude her from pursuing her case further" and she "asks the Court to exercise its discretion to permit [her] to serve Defendant in her case." Doc. 10, at 2. Thus, Plaintiff is asking the court to permissibly extend her time to serve Defendant based on the first factor, that is, that the statute of limitations would bar her action were it dismissed and refiled.
As previously shown, see supra Part II.D., Plaintiff has done little to support that request. When given the opportunity to do so in a supplemental response to the initial show cause order, Plaintiff provided no authority addressing her specific situation. See Doc. 10. Instead, she simply relied on the same decision the undersigned had cited when ordering the supplemental response, and argued that '"[r[elief may be justified ... if the applicable status [sic] of limitations would bar the refiled action."' See id. at 1 (citing Espinoza, 52 F.3d at 842.) There is no question, however, that this Court may grant Plaintiff a permissive extension. Instead, the issue is whether a permissive extension of time is warranted under the facts of this particular case, and Plaintiff has failed to provide legal support for such a finding See Doc. 10.
Additionally, Plaintiff asked the court to consider "the reasons stated in Plaintiff's Response to the Order to Show Cause [ECF No. 8 . . . ." Id. at 1. Presumably, these "reasons" are the difficulties—Counsel's divorce from his paralegal; a resulting lack of assistance; the "sharp decline in [Counsel's] physical health"; and Counsel's need for medical testing—that, according to Counsel's "apolog[y]," "led to the unintentional missing of deadlines." Doc. 8, at 1. But, once again, Plaintiff has not provided legal support for a permissive extension in similar circumstances. See Doc. 10.
Significantly, however, it was in this same November 26, 2019 "apolog[y]," Doc. 8, at 1, that Counsel informed the court that "[a]s of the past month [his] health ha[d] stabilized, allowing him to continue handling" his pending cases. Id. at 2. It is not clear whether Counsel meant that he had been actively handling his pending cases during the past month—that is, from around October 26, 2019 until November 26, 2019—or that he had just started doing so. Regardless, Counsel made this same representation in two other cases where he had failed to effect service. See Haraughty v. Saul, No. CIV-19-510-P, Doc. 4, at 2; see also Odea v. Saul, No. CIV-19-574-P, Doc. 6, at 2. But in those two cases, Counsel identified November 4, 2019, as the effective date of his recovery.
Counsel's blatantly inconsistent representations aside, despite his return—at some point—to health and to his pending cases, he took no action in the instant matter. He did so only after the undersigned ordered Plaintiff to show cause for her failure to serve Defendant. See Doc. 7. And then, instead of filing a supported motion for an extension of time to serve Defendant, Counsel informed the court he was ready to file proof of service and asked the court to "allow him to file the proof of service . . . ." Doc. 8, at 2. It was only after the undersigned sought clarification through a supplemental response, see Doc. 9, that Counsel "admit[ted] to serving Defendant after the expiration of the ninety-day period without first seeking an extension of time from the court." Doc. 10, at 1.
"At th[is] point the district court may in its discretion either dismiss the case without prejudice or extend the time for service." Espinoza, 52 F.3d at 841. Considering the applicable law and the facts of this case, a permissive extension of time for service of process is not justified. Simply put, under the circumstances present here, Plaintiff has not provided the court with any reason, factual or legal, to exercise its discretion in favor of extending the time for service.
IV. Recommendation and notice of right to object.
Because Plaintiff failed to serve Defendant within the allotted ninety days or to show good cause for that failure, and because a permissive extension of time is not justified in this case, the court "must dismiss the action without prejudice against th[e D]efendant . . . ." Fed. R. Civ. P. 4(m).
The undersigned advises Plaintiff of her right to file an objection to this Report and Recommendation with the Clerk of Court on or before February 21, 2020, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives her right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
The undersigned directs the Clerk of Court to mail a copy of this Report and Recommendation to the United States Attorney for the Western District of Oklahoma on Defendant's behalf at the following address: 210 W. Park Ave., Suite 400, Oklahoma City, Oklahoma 73102.
This Report and Recommendation disposes of all the issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 31st day of January, 2020.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE