Spears v. Okmulgee County Criminal Justice Trust Authority et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
RONALD SPEARS, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. 23-CV-65-JFH-GLJ
)
OKMULGEE COUNTY 	)
CRIMINAL JUSTICE TRUST 	)
AUTHORITY, and OKMULGEE 	)
COUNTY BOARD OF 	)
COMMISSIONERS, 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
This matter comes before the Court on Defendants Okmulgee County Criminal
Justice Trust Authority and Okmulgee County Board of Commissioners’ Motion to
Dismiss Plaintiff’s Amended Complaint and Brief in Support (“Motion to Dismiss”). See
Docket No. 13. 	Plaintiff originally filed his action in Okmulgee County District Court,
Oklahoma, and Defendants subsequently removed the action to this Court. See Docket No.
2-1. On April 25, 2023, the Court referred this case to the undersigned Magistrate Judge
for all further proceedings in accordance with jurisdiction pursuant to 28 U.S.C. § 636. See
Docket No. 14. 	For the reasons set forth below, the undersigned Magistrate Judge finds
that Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint and Brief in Support
(“Motion to Dismiss”) [Docket No. 13] should be DENIED and the defective service of
process QUASHED.
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PROCEDURAL HISTORY
On July 7, 2022, Plaintiff filed his petition in Okmulgee County District Court,
Oklahoma, asserting claims arising under the Americans with Disabilities Act of 1990, the
Oklahoma Anti-Discrimination Act and wrongful discharge. See Docket No. 2-2. Plaintiff
did not serve the petition on the Okmulgee County Criminal Justice Trust Authority
(“OCCJA”) until January 30, 2023 and the Okmulgee County Board of Commissioners
(“Board”) until February 2, 2023, both after the 180 days allowed for service under 12 O.S.
§ 2004(I). 	See Docket No. 13 at p. 4. 	After Defendants were served, they removed the
action to this Court. 	See Docket No. 2-1 	Plaintiff subsequently filed an Amended
Complaint, adding claims arising under Title VII of 42 U.S.C. § 1983 and the Fourteenth
Amendment of the U.S. Constitution. See Docket No. 11. On April 25, 2023, Defendants
filed the Motion to Dismiss. See Docket No. 13.
FACTUAL BACKGROUND
Plaintiff alleges he was employed with the OCCJA and the Board for thirteen years.
See Docket No. 11 at ¶ 15. 	In 2016, Plaintiff was diagnosed with cancer. 	Id. at ¶ 17.
Defendants were aware he was actively participating in cancer treatment after his
diagnosis, including receiving three medical treatments per month that required time off
from work and/or an alteration of his work schedule. Id. at ¶¶ 18-19. In particular, Plaintiff
alleges that his cancer treatments caused him to experience pain, lethargy and nausea, but
he was nonetheless able to perform his job functions with certain accommodations. Id. at
¶ 21. 	At some point when Sam McCoy was OCCJA Director, Plaintiff requested and
received an unspecified accommodation for his cancer treatments. Id. at ¶¶ 24 & 43. After
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Shannon Clark replaced McCoy as OCCJA Director, Clark instituted a blanket policy
prohibiting employees from taking time off work to address health care issues or to work
from home. Id. at ¶¶ 23-24. Despite being aware of Plaintiff’s cancer treatment, Clark and
Defendants refused to engage in a dialogue with Plaintiff regarding his medical treatment
or any potential accommodation and did not allow the accommodation Plaintiff required.
Id. at ¶ 25. Plaintiff was qualified for his positions at OCCJA and, prior to his termination,
was consistently promoted and was never disciplined. 	Id. at ¶ 22. 	On some unspecified
date, the OCCJA and Board retired to a closed session and, acting together in concert,
decided to terminate Plaintiff without reason. Id. at ¶ 25. Plaintiff alleges his termination
was 	based 	on 	his 	previous 	requested 	accommodation, 	which 	conflicted 	with
Clark/OCCJA’s newly instituted policy prohibiting such accommodation. Id.
ANALYSIS
I. 	MOTION TO DISMISS FOR FAILURE TO TIMELY SERVE
Defendants first seek to dismiss Plaintiff's Amended Complaint under Fed. R. Civ.
P. 12(b)(5) and 4(m) or alternatively, or perhaps in addition to, 12 O.S. § 2004(I), for failure
to timely serve process. 	Although Defendants’ Motion to Dismiss requires the Court to
traverse a curious landscape of state and federal procedural rules, neither party sets forth
which specific law the Court must follow in this instance nor how those differing laws
interact with the others.
It is well-settled that, after removal, federal rather that state law governs the course
of proceedings. 	Wallace v. Microsoft Corp., 596 F.3d 703, 706 (10 th Cir. 2010) (citing
Granny Goose Foods, Inc. v. Teamsters Local 70, 415 U.S. 423, 437 (1974)). Nonetheless,
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“federal courts in removed cases look to the law of the forum state . . . to determine whether
service of process was perfected prior to removal.” 	Id. (citing Freight Terminals, Inc. v.
Ryder Sys., Inc., 461 F.2d 1046, 1052 (5 th Cir. 1972)).
Under 12 O.S. § 2004(I), “[i]f service of process is not made upon a defendant
within one hundred eighty (180) days after the filing of the petition and the plaintiff has
not shown good cause why such service was not made within that period, the action shall
be deemed dismissed as to that defendant without prejudice. . . .” 	(Emphasis added).
Further complicating the matter, however, “[i]n all cases removed from any State court to
any district court of the United States . . . in which process served proves to be defective,
such process or service may be completed or new process issued in the same manner as in
cases originally filed in such district court.” 28 U.S.C. § 1448. This provision may grant
a plaintiff a new 90-day period from the date of the removal to perfect or obtain service.
Wallace, 596 F.2d at 707 (defendant’s removal gave plaintiff an additional 120 days [the
period for service then allowed by Fed. R. Civ. P. 4(m)] in which to perfect service).
Moreover, Rule 4(m) provides that:
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 services for an appropriate period.
. . .
Fed. R. Civ. P. 4(m).
A court lacks personal jurisdiction over a defendant if there is insufficient service
of process. Emps. Reinsurance Corp. v. Bryant, 299 U.S. 374, 376 (1937). Rule 4 governs
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service of process and “provides the mechanism by which a court . . . asserts jurisdiction
over the person of the party served.” Okla. Radio Assocs. v. F.D.I.C., 969 F.2d 940, 943
(10 th Cir. 1992). See also Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)
(quoting Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444-45 (1946) (“Before
a federal court may exercise personal jurisdiction over a defendant, the procedural
requirement of service of summons must be satisfied. ‘[S]ervice of summons is the
procedure by which a court having venue and jurisdiction of the subject matter of the suit
asserts jurisdiction over the person of the party served.’”). 	“Effectuation of service is a
precondition to suit,” Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10 th Cir. 1998), and
Rule 12(b)(5) authorizes dismissal of a lawsuit for insufficient service of process.
Defendants assert and Plaintiff does not challenge that service of process was not
obtained on Defendants within 180 days as required by 12 O.S. § 2004(I). 	Instead of
challenging the untimely service under Oklahoma law in an Oklahoma state court,
Defendants removed the case to this Court and now ask this Court to dismiss the Amended
Complaint based on the failure to timely serve them as required by Oklahoma law. 	By
removing the case, however, Defendants at least arguably granted Plaintiff 90 days from
the removal date within which to cure the defective service under 28 U.S.C. § 1448.
Wallace, 596 F.2d at 707; see also Jackson v. Spirit Aerosystems, Inc., 2022 WL 43344,
*2 (D. Kan Jan. 5, 2022) (§ 1448 “may grant a plaintiff a new 90-day period from the date
of the removal to perfect or obtain service”) (emphasis original). Plaintiff, however, either
by intent or neglect, did nothing to cure the defective service of Defendants within the 90-
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day period after removal. Instead, Plaintiff simply argues that he had “good cause” for not
timely serving Defendants under Oklahoma’s service rules.
The language of 12 O.S. § 2004(I), as amended in 2009, is clearly mandatory rather
than permissive. 12 O.S. § 2004(I); Colclazier & Assocs. v. Stephens, 277 P.3d 1285, 1289
(Okla. Civ. App. 2012) (the current version uses the mandatory “shall be deemed
dismissed” language). 	When service is untimely, the Oklahoma Court of Civil Appeals
has held that an action “shall be deemed dismissed as of 181 days following [relevant filing
date,] if it [is] determined on remand that [the plaintiff] did not have good cause for the
delay in service.” 	Id. 	Thus, Oklahoma courts lack discretion to grant permissive
extensions of the service period in the absence of some showing of good cause. 	“The
burden rests upon the ‘plaintiff who resists dismissal to demonstrate good cause why
service on the defendants was not made within the prescribed 180-day period.’” Brown v.
K-MAC Enterprises, 897 F.Supp.2d 1098, 1108 (N.D. Okla. 2012) (quoting Willis v.
Sequoyah House, Inc., 194 P.3d 1285, 1290 (Okla. 2008)). Moreover, Plaintiff “must show
good cause for the occasioned delay by more than a lawyer’s conclusory reference in an
argument to the court,” and “[c]ounsel’s unsworn representations do not rise to the level of
proof of good cause contemplated by the terms of [§ 2004(I)].” Willis, 194 P.3d at 1290.
There is similarly a good cause component under Rule 4(m). The first inquiry under
Rule 4(m) is whether Plaintiff has shown good cause for the failure to timely serve
Defendants. If good cause is shown, Plaintiff is entitled to a mandatory extension of time.
If Plaintiff fails to show good cause, then the district court must “consider whether a
permissive extension of time may be warranted. At that point the district court may in its
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discretion either dismiss the case without prejudice or extend the time for service.” Murphy
v. City of Tulsa, 556 F. App’x 664, 667 (10th Cir. 2014) (quoting Espinoza v. United States,
52 F.3d 838, 841 (10 th Cir. 1995)). The Tenth Circuit holds that “good cause” under Rule
4(m) is a “high bar” that does not encompass attorney misinterpretation of Rule 4 or an
attorney’s failure to monitor a hired process server. 	See Murphy, 556 F. App’x at 668.
With respect to the Court’s discretion to extend the time for service even in the absence of
good cause, the Court should consider various factors, including that “[r]elief may be
justified . . . if the applicable statute of limitations would bar the refiled action.” Espinoza,
52 F.3d at 842 (citing Fed. R. Civ. P. 4(m) advisory committee’s note (1993)).
Plaintiff puts forth divergent reasons for his failure to serve Defendants within 180
days in attempting to establish “good cause.” In his Amended Complaint, Plaintiff alleges
that he and certain unnamed key witnesses to his case received “letters of inquiry
requesting documents” from the U.S. Attorney’s Office for the Eastern District of
Oklahoma, which allegedly related at least in part to Plaintiff’s employment with
Defendants. See Docket No. 11 at ¶ 12. As a result of these letters of inquiry, addressing
the U.S. Attorney’s concerns became Plaintiff and his counsel’s “priority” and those issues
were addressed before serving Defendants in this lawsuit. 	Id. at ¶¶ 13-14. 	In Plaintiff’s
Response In Opposition to the Defendants’ Motion to Dismiss and Brief in Support
(“Response”), Plaintiff expands somewhat on the issue, stating that the inquiry was
impending criminal litigation with some connection to this case and that unnamed key
witnesses received subpoenas. See Docket No. 19 at p. 3. Plaintiff further asserts without
explanation that he was fearful any potential FBI proceedings could impend his civil case.
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Id. 	Not only are these allegations and assertions vague, nether the allegations in the
Amended Complaint nor the assertion of fear in the Response are supported by anything
more than “a lawyer’s conclusory reference” and “[c]ounsel’s unsworn representations
[that] do not rise to the level of proof of good cause contemplated by the terms of
[§2004(I)].” Willis, 194 P.3d at 1290. Similarly, these vague and unsupported allegations
do not meet the “high bar” of Rule 4(m). Plaintiff offers no evidence or proof upon which
the undersigned Magistrate Judge can review or analyze as to how the inquiry by the U.S.
Attorney’s Office relates to or could impede this case, could cause the Plaintiff to fear
serving process on Defendants, or in any way establish good cause for his failure to timely
serve Defendants under 12 O.S. § 2004(I) or for good cause to entitle him to a mandatory
extension under Rule 4(m). The Amended Complaint plainly alleges that Plaintiff and/or
his counsel elected to prioritize responding to the U.S. Attorney’s inquiry over serving
Defendants in this case and he did not seek an extension of time to effect service. Such a
decision without more evidentiary justification is not good cause for the failure to timely
serve process. 	Therefore, the undersigned Magistrate Judge concludes Plaintiff does not
show good cause under either federal or state law to excuse his untimely service and, as a
result, this Court lacks personal jurisdiction over Defendants.
Finding that Plaintiff does not show good cause, however, is not the end of the
inquiry. Even in the absence of good cause, courts still have discretion under Rule 4(m) to
permissively to grant an extension should the situation warrant one. Espinoza, 52 F.3d at
841 (“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.”).
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Courts may rely on various factors in determining whether to exercise this discretion,
including “whether the defendant had actual notice of the lawsuit, the danger of prejudice
to the defendant, the length of the delay, and whether the applicable statute of limitations
would bar a re-filed action.” Kelley v. City of Atchison, Kan., 2021 WL 2550171, at *3 (D.
Kan. 2021). 	The Tenth Circuit holds, “[t]he general rule is that when a court finds that
service is insufficient but curable, it generally should quash the service and give the
plaintiff an opportunity to re-serve the defendant.” 	Gregory v. U.S./U.S. Bankr. Ct. for
Dist. of Colo., 942 F.2d 1498, 1500 (10th Cir. 1991) (further quotations and citations
omitted); see also Washington v. City of Oklahoma City, 2021 WL 798379, *3 (W.D. Okla.
March 2, 2021) (“Motions under Rule 12(b)(5) offer the district court the option of
quashing the improper service of process without dismissing the action) (citations omitted);
5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1354 (3d
ed. 2004) (“The reluctance of the courts to dismiss an action when there is a possibility that
effective service will be completed is understandable inasmuch as the dismissal would be
without prejudice and probably would lead to the reinstitution of the suit by the plaintiff.
Thus, dismissal needlessly burdens the parties with additional expense and delay and
postpones the adjudication of the controversy on its merits.”) (citations omitted).
The applicable factors weigh in favor of quashing Plaintiff’s improper service rather
than dismissing the case, and granting a permissive extension to cure the untimely service.
First, Defendants became aware of the case when it was served on them out of time, but
chose to pursue litigation in this Court through removal rather than promptly addressing
the defective service issue in the Oklahoma district court. 	Similarly, Defendants do not
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allege and there is no evidence that granting an extension to rectify the service issue will
result in any prejudice to them. 	Whatever delay might result in granting an extension to
serve is likely to result in less delay than if the case is dismissed without prejudice, thereby
resulting in Plaintiff refiling the action anew and obtaining the full 180 or 90 days to effect
service. 	Finally, because the Amended Complaint does not contain key dates of events,
such as Plaintiff’s termination, the Court cannot evaluate the effect dismissal would have
on any statute of limitations issues. 	Nonetheless, the undersigned Magistrate Judge is
mindful that a dismissal could implicate statute of limitations issues. In general, “federal
courts have shown ‘a desire to prevent unnecessary dismissals by retaining removed cases
and curing defects in the state court service.’” Washington, 2021 WL 798379 at *3 (quoting
4A C. Wright, A. Miller, & A. Steinman, Federal Practice and Procedure § 1082 (4th ed.
Oct. 2020)). 	“As such, ‘[a] defendant can obtain a dismissal after removal only when the
original service in the state court was improper, and the plaintiff finds it impossible to
perfect service under Rule 4 after removal.’” Id. No such impossibility is present here.
For the reasons stated above, the undersigned Magistrate Judges concludes that the
service of process on Defendants was untimely and ineffective under 12 O.S. § 2004(I)
and, after removal, under 28 U.S.C. § 1448, and good cause is not shown by Plaintiff for
the untimely service. Nonetheless, the undersigned Magistrate Judges concludes that the
defective service should be quashed and that Plaintiff should be granted additional time to
cure the defective service and properly serve Defendants under Fed. R. Civ. P. 4.
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II. 	MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(6)
Defendants also seek the dismissal of the Amended Complaint under Fed. R. Civ.
P. 12(b)(6) for failure to state a claim. As noted above, however, this Court lacks personal
jurisdiction over Defendants because there was ineffective service of process. 	Emps.
Reinsurance Corp., 299 U.S. at 376. 	Removal does not waive Defendants’ objection to
insufficient service. 	See Jenkins v. MTGLQ Investors, 218 F. App’x 719, 724 (10 th Cir.
2007) (“After removal, [the defendant] had the ‘right to the opinion of the Federal court . .
. as to the validity of the service of process [in the state court.]’” (citation omitted)).
Because this Court does not have personal jurisdiction over Defendants, the undersigned
Magistrate Judge declines to consider the merits of Defendants’ Rule 12(b)(6) arguments.
Although 	this 	Report 	and 	Recommendation 	is 	not 	addressing 	the 	merits 	of
Defendants’ Rule 12(b)(6) arguments, Plaintiff concedes in his Response that he cannot
state a claim under the Oklahoma Anti-Discrimination Act, 25 O.S. §§ 1101 et seq., or for
wrongful discharge, Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989). Therefore, Plaintiff
is granted leave to file a second amended complaint to eliminate those conceded claims
from his action.
CONCLUSION
Based 	on 	the 	above 	findings, 	the 	undersigned 	Magistrate 	Judge 	hereby
RECOMMENDS that Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint and
Brief in Support [Docket No. 13] be DENIED, that the ineffective service of process on
Defendants be QUASHED, and that Plaintiff be given fourteen days from the adoption of
this Report and Recommendation to file a second amended complaint as described herein
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and to effectuate proper service of Defendants under Fed. R. Civ. P. 4. Any objections to
this Report and Recommendation must be filed within fourteen days. 	See 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72(b). Any objection 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.
DATED this 5th day of June, 2023.
_____________________________________
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE
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