Harris v. McCurtain County Jail Trust et al

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
ROPER HARRIS, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. 22-cv-187-RAW-DES
)
McCURTAIN COUNTY JAIL TRUST; 	)
BOARD OF COUNTY COMMISIONERS 	)
OF McCURTAIN COUNTY, OKLAHOMA; 	)
SCOTT McLAIN, individually and in his 	)
official capacity as McCurtain County Jail 	)
Administrator; KEVIN CLARDY, individually 	)
and in his official capacity as McCurtain County 	)
Sheriff; and RICHARD WILLIAMSON; 	)
ALICIA MANNING; BRANDON STANSBURY; )
JOE EBERT; and CODY JOHNSON; in their 	)
official and individual capacities, 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
This matter comes before the Court on Defendant McCurtain County Jail Trust’s
(“Defendant” or “MCJT”) Motion to Dismiss Plaintiff’s First Amended Complaint, pursuant to
Rule 12(b)(2), (4) and (5). (Docket No. 59). On November 29, 2022, United States District Judge
Ronald A. White referred this case to Magistrate Judge Kimberly E. West for all pretrial and
discovery matters, including dispositive motions, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R.
Civ. P. 72. (Docket No. 40). 	On June 2, 2023, the Court Clerk reassigned the undersigned
Magistrate Judge as the referral judge for this case. (Docket No. 72). For the reasons set forth
below, Defendants’ Motion to Dismiss should be DENIED.
I. 	Background
On June 27, 2022, Plaintiff Roper Harris filed his Complaint alleging violations of the
United States Constitution, the Oklahoma Constitution, and Oklahoma law arising out of his arrest
6:22-cv-00187-JFH-DES Document 100 Filed in ED/OK on 07/24/23 Page 1 of 7

2
and incarceration at the McCurtain County Jail in September of 2021. (Docket No. 2). On
November 11, 2022, Defendant MCJT filed a Motion to Dismiss arguing lack of personal
jurisdiction due to insufficient process and insufficient service of process and for failure to state a
claim upon which relief can be granted. (Docket No. 34). On December 5, 2022, Plaintiff filed his
First Amended Complaint. (Docket No. 41). Defendant MCJT filed the present Motion to Dismiss
Plaintiff’s First Amended Complaint arguing only lack of personal jurisdiction due to insufficient
process and insufficient service of process.1
Defendant argues pursuant to Fed. R. Civ. P. 4(m), the Plaintiff had 90 days from June 27,
2022, or until September 25, 2022, to obtain service on the Defendant. (Docket No. 59 at 3).
Plaintiff did not obtain service on Defendant until October 24, 2022. (Docket No. 21). Under Fed.
R. Civ. P. 4(m), “If a defendant is not served within 90 days after the complaint is filed, the court
. . . must dismiss the action without prejudice against the defendant or order that service be made
within a specified time.”. This rule also states that “if the Plaintiff shows good cause for the failure,
the court must extend the time for service for an appropriate period.” Id. Defendant argues that
Plaintiff cannot show good cause for the delay; therefore, the complaint against MCJT should be
dismissed. (Docket No. 59 at 3).
Within its argument, Defendant notes that Plaintiff may cite to DatRec, LLC v.
AllegianceMD Software, Inc. 2022 WL 2758527, No. 21-CV-543-TCK-JFJ (N.D. Okla. July 14,
2022) (unpublished) to support the reason he should receive a retroactive extension of time for
service “irrespective of whether or not Plaintiff can establish good cause for the short delay in
service.” (Docket No. 59 at 4). Defendant argues that the grounds underlying the decision to grant
discretionary, retroactive extension of time were based on the DatRec Court finding that the
1 Defendant MCJT’s original Motion to Dismiss (Docket No. 32) was deemed moot by the Court when the First
Amended Complaint was filed (Docket No. 62).
6:22-cv-00187-JFH-DES Document 100 Filed in ED/OK on 07/24/23 Page 2 of 7

3
plaintiff had made a “good faith- if not diligent- effort to timely effect service” and that “any delay
in effecting service was not inordinate, prejudicial, or intentional.” DatRec, 2022 WL 2758527, at
*1-2. Defendant argues Plaintiff, in the present case, in no way made a good faith effort to serve
the Defendants, evidenced by the fact that Plaintiff did not even request the Court Clerk to issue
summonses to the Defendants until October 21, 2022, which was already nearly a month after the
90-day deadline to serve. (Docket No. 59 at4). Defendant argues that the Plaintiff’s failure to not
only serve the Complaint within the 90-day deadline but failure to even request summons before
the 90-day service deadline is “clearly contrary to any suggestion of good cause.” (Docket No. 59
at 3). Defendant also argues that while it has not been unduly prejudiced by Plaintiff’s failure to
timely serve, the “lack of such prejudice alone should not be sufficient to warrant the grant of
discretionary, retroactive extension of time for service.” Id. at 6. The undersigned Magistrate Judge
has made a diligent effort to find authority to support Defendant’s reasoning but found nothing.
In his response to MCJT’s Motion to Dismiss, Plaintiff admits that he had until September
25, 2022 to serve MCJT and that he did not effectuate service on that date. However, Plaintiff
states that dismissal would be improper and is not favored by the courts. (Docket No. 63 at 2).
Plaintiff argues that permissive extension of time to serve is warranted as dismissing the case now
that the Defendants have been served would do nothing to advance “the efficient litigation of cases
that Rule 4(m) is intended to promote.” DatRec, 2022 WL 2758527, at *1-2. Furthermore, Plaintiff
argues that “it would be inefficiency of the highest magnitude to dismiss the case and require the
parties and Court administrative staff to start anew on under a different caption.” (Docket No. 63
at6) (citing DatRec, 2022 WL 2758527, at *1-2).
6:22-cv-00187-JFH-DES Document 100 Filed in ED/OK on 07/24/23 Page 3 of 7

4
Plaintiff also reasons that the twenty-six (26) day2 delay it took to serve the complaint “did
not inordinately delay the litigation.” (Docket No. 63 at 6). Furthermore, Plaintiff argues that even
MCJT admits that it suffered no undue prejudice as a result of the delay in service. As such,
Plaintiff asserts the Motion to Dismiss should be denied.
II. 	Analysis
Fed. R. Civ. P. 12(b)(5) allows for dismissal of an action without prejudice based on
insufficient service of process. Under Fed. R. Civ. P. 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. But if the plaintiff shows good cause for the failure, the court must extend
the time for service for an appropriate period.” A court applying these rules engages in a two-part
analysis. First, the court considers whether the plaintiff has shown good cause for his failure to
timely serve the defendant. Espinoza v. U.S., 52 F.3d 838, 841 (10th Cir. 1995). If good cause is
shown for untimely service, an extension of time for service of process is mandatory. Fed. R. Civ.
P. 4(m). If good cause is not show, then the court proceeds to the second step of the analysis and
determines whether a permissive extension is warranted. Espinoza, 52 F.3d 838 at 841. The court
may then, within its discretion, dismiss without prejudice or extend the time for service. Id.
In this case, there is no dispute that Plaintiff did not serve MCJT within 90 days of filing
the Complaint and Plaintiff did not seek an extension of time to serve. In fact, there is no evidence
that Plaintiff took efforts to serve the Defendant until after the deadline had passed, because he did
not request summons until October 21, 2022, twenty-six (26) days after the prescribed service date.
Moreover, Plaintiff does not argue that he had good cause for his delay in properly serving MCJT.
2 By the undersigned’s calculation, the actual day delay to serve Defendant MCJT was twenty-nine (29) days.
6:22-cv-00187-JFH-DES Document 100 Filed in ED/OK on 07/24/23 Page 4 of 7

5
Accordingly, the undersigned Magistrate Judge finds no good cause sufficient to warrant a
mandatory extension of Plaintiff’s deadline to serve MCJT.
“[F]ailure to show good cause for a mandatory extension of time does not end the inquiry
under Fed. R. Civ. P. 4(m).” Id. “If the plaintiff fails to show good cause, the district court must
still consider whether a permissive extension of time may be warranted.” Id. “[A] plaintiff who
has failed to show ‘good cause’ for a mandatory extension of time my still be granted a permissible
extension of time within the district court’s discretion.” 	Id. “In determining whether to grant a
permissive extension, the pertinent considerations include [the plaintiff’s] pro se status, the
complexity of the service requirements for federal agencies, the danger of prejudice to the
defendants and the possible expiration of the statute of limitations on the claims.” Shepard v. U.S.
Dep’t of Veterans Affs.,624 (10th Cir. 2020) (unpublished) (citing Espinoza).
Plaintiff is not proceeding pro se and no federal entity is a party to this lawsuit. Regarding
the statute of limitations factor, the undersigned Magistrate Judge notes (without deciding) that a
dismissal under Rule 4(m) may not necessarily bar the refiling of at least some of Plaintiff’s claims.
Oklahoma’s savings statute may save certain claims because a Rule 4(m) dismissal represents a
failure “otherwise than on the merits” within the meaning of Okla. Stat. tit. 12, § 100. Young v.
Rios, No. CIV-15-641-R, 2018 WL 2079509, at *2 (W.D. Okla. May 4, 2018). Stated differently,
Plaintiff may be able to refile certain claims within one year of any dismissal without prejudice
under Rule 4(m) “although the time limit for commencing the action shall have expired before the
new action is filed.” 	Okla. Stat. tit. 12, § 100. Thus, three of the four Espinoza factors weigh
against granting Plaintiff a permissive extension of time in this case.
However, the undersigned Magistrate Judge finds the Defendant has not suffered undue
prejudice by Plaintiff’s delayed service and that this factor weighs heavily in favor of extending
6:22-cv-00187-JFH-DES Document 100 Filed in ED/OK on 07/24/23 Page 5 of 7

6
the time for service. MCJT does not argue that it was not served, rather, timeliness is the only basis
it asserts for insufficient process. MCJT has been properly served and the parties have conducted
a discovery conference, exchanged initial disclosures, submitted a joint status report, and
commenced discovery. (Docket No. 63 at 5). “Dismissing the case now . . . would do nothing to
advance the efficient litigation of cases that Rule 4(m) is intended to promote – to the contrary, it
would be inefficiency of the highest magnitude . . . .” DatRec, 2022 WL 2758527, at *2.
Furthermore, as Plaintiff correctly points out, “despite the additional time taken, Plaintiff still
effectuated service ‘more timely . . . than in other cases in which this Court has issued warnings to
plaintiffs and given a deadline to serve the complaint.’” (Docket No. 63 at 6) (citing DatRec, 2022
WL 2758527, at *2). See also, Spears v. Okmulgee Cnty. Crim. Just. Tr. Auth., No. 23-CV-65-
JFH-GLJ, 2023 WL 4143244, at *4 (E.D. Okla. June 5, 2023) (unpublished) (The Court concluded
that service was improper and untimely and good cause was not shown. Nonetheless, the Court
determined service should be quashed and that Plaintiff should be granted additional time to cure
the defective service); Harris v. Edwards, No. CIV-22-310-RAW-GLJ, 2023 WL 4041888, at *1
(E.D. Okla. Apr. 5, 2023) (unpublished) (Plaintiff failed to establish good cause for lack of service
of complaint but the Court granted Plaintiff a permissive extension of time to serve Defendant).
Accordingly, the undersigned Magistrate Judge hereby RECOMMENDS that the time for
Plaintiff to serve Defendant MCJT be extended such that the service effectuated on October 24,
2022 was timely and that Defendant McCurtain County Jail Trust’s Motion to Dismiss Plaintiff’s
First Amended Complaint (Docket No. 59) be DENIED. Any objections to this Report and
Recommendation must be filed within fourteen days. See 18 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b). Any objections and response shall each be limited to 10 pages and a reply is permitted only
with leave of court upon a showing of good cause.
6:22-cv-00187-JFH-DES Document 100 Filed in ED/OK on 07/24/23 Page 6 of 7

7
DATED this 24th day of July, 2023.
____________________________________
D. Edward Snow
United States Magistrate Judge
6:22-cv-00187-JFH-DES Document 100 Filed in ED/OK on 07/24/23 Page 7 of 7