VanGessel v. PepsiCo et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHRISTOPHER ALLEN VANGESSEL,
Plaintiff,
v. 	Case No. 25-1087-JWB
PEPSICO, et al.,
Defendants.
NOTICE AND ORDER TO SHOW CAUSE
On May 5, 2025, Plaintiff Christopher Allen VanGessel filed his complaint against all
Defendants alleging that his employment was terminated, that Defendants failed to accommodate
his disability, and that he was subject to retaliation and harassment all in violation of the American
with Disabilities Act of 1990. He claims that he is still unable to work and has lost nearly $30,000
in wages. Simultaneously with his complaint, Plaintiff filed a motion to proceed in forma pauperis
(“IFP”), which was granted on September 12, 2025. (Doc. 6.) Given that United States Marshals
Service effect service of process for parties granted IFP status, Plaintiff provided the address of
the PepsiCo plant where he was employed, and the summonses against each Defendant were
delivered to that address and served on Adam Bergeson, a Plant Director, on September 19, 2025.
(Docs. 8, 9, 10.) Defendants then filed a motion to dismiss under Federal Rule of Civil Procedure
12(b)(5), alleging improper service on an unauthorized agent. (Doc. 12.)
On November 20, 2025, Magistrate Judge Birzer directed Plaintiff to properly serve each
Defendant and extended the deadline to perfect service until December 31, 2025. (Doc. 18.) In
response to this order, Plaintiff provided the court with the address of an authorized agent for
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Defendant PepsiCo Inc., and service was executed on December 8, 2025. (Doc. 21.)1 However,
no summonses were served on either of the individual Defendants, Jason Russell and Kassandra
Hegg, before December 31, and there is no indication that Defendants Jason Russell and Kassandra
Hegg have waived or consented to service from Plaintiff.
To properly serve a defendant in compliance with the Federal Rules of Civil Procedure,
“[a] summons must be served with a copy of the complaint.” Fed. R. Civ. P. 4(c)(1); see also Fed.
R. Civ. P. 4(b) (“A summons . . . must be issued for each defendant to be served.”). If service of
process is insufficient under Federal Rule of Civil Procedure 4, a federal court is without personal
jurisdiction over that defendant. Rivera v. Riley Cnty. Law Bd., No. 11-cv-02067-JAR-JPO, 2011
WL 4686554, at *2 (D. Kan. Oct. 4, 2011) (citing Blackmon v. U.S.D. 259 Sch. Dist., 769 F. Supp.
2d 1267, 1273 (D. Kan. 2011)).
The time limit for service of process is governed by Fed. R. Civ. P. 4(m). That Rule states
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.” Pursuant to Rule 4(m), Plaintiff
filed his Complaint on May 5, 2025, meaning he was required to serve Defendant on or before
August 4, 2025. More than 90 days have passed since the Complaint was filed and service has not
been effectuated. 	Further, the extended deadline for service set by Magistrate Judge Birzer has
also expired. Simply stated, Plaintiff has not properly effectuated service of process on Defendants
Jason Russell and Defendant Kassandra Hegg. Additionally, Fed. R. Civ. P. 41(b) provides that
the Court may dismiss an action for failure to prosecute. Accordingly, the Court orders Plaintiff
to show cause in writing by January 30, 2026, as to why the Plaintiff’s claims against Defendant
1 Defendant PepsiCo Inc. answered the complaint on January 12, 2026, and so the court constructively construes this
action as Defendant PepsiCo Inc. voluntarily withdrawing their part of the motion to dismiss under Rule 12(b)(5).
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Jason Russell and Defendant Kassandra Hegg should not be dismissed pursuant to Rule 12(b)(5),
Rule 4(m), and/or Rule 41(b). Alternatively, Plaintiff may file a notice of voluntary dismissal of
his claims against these two Defendants.
IT IS SO ORDERED. Dated this 15th day of January 2026.
__ s/ John Broomes__________
JOHN W. BROOMES
CHIEF UNITED STATES DISTRICT JUDGE
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