Fitzhugh v. Capital One Financial Corporation et al

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DARRYL L. FITZHUGH, )
)
Plaintiff, )
)
v. ) Case No. CIV-25-342-G
)
PIONEER WEB DESIGN, )
)
Defendant. )
ORDER
On March 24, 2025, Plaintiff Darryl L. Fitzhugh filed this civil action, bringing
claims against Defendants Capital One Financial Corp and Pioneer Web Design
(“Pioneer”). See Compl. (Doc. No. 1).
After Plaintiff initiated this case, he was granted leave to proceed in forma pauperis,
and the Court authorized service to be made by the United States Marshals Service
(“USMS”). See Order of June 27, 2025 (Doc. No. 3). The summons issued as to Defendant
Pioneer was returned unexecuted by the USMS. See Doc. No. 6.
Plaintiff’s deadline to effect service expired on or about September 25, 2025. See
Order of June 27, 2025; Fed. R. Civ. P. 4(m). Plaintiff failed to provide proof of service
or waiver of service to the Court as to Defendant Pioneer by that date.
Accordingly, on November 3, 2025, the Court directed Plaintiff to show cause in
writing, within 14 days, why the claims against Defendant Pioneer should not be dismissed.
See Order of Nov. 3, 2025 (Doc. No. 12). The Court’s Order was mailed to Plaintiff at his
address of record. As of this date, Plaintiff has not responded to the Order or shown that
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service has been perfected as to Defendant Pioneer. Nor has Defendant answered or
otherwise indicated awareness of Plaintiff’s lawsuit.
A plaintiff in a federal civil lawsuit is required to have each defendant served with
a summons and a copy of the pleading by a date certain. See Fed. R. Civ. P. 4(c)(1), (m).
Although Plaintiff is a pro se litigant, he is required to comply with the same procedural
rules that govern all litigants, including Rule 4. See DiCesare v. Stuart, 12 F.3d 973, 980
(10th Cir. 1993) (stating that pro se plaintiff was “obligated to follow the requirements of
Fed. R. Civ. P. 4”). Thus, Plaintiff’s failure to complete proper service upon a defendant
within the prescribed time limit is grounds for dismissal of all claims against that party,
absent any justification for this failure. See 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 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.”).
Plaintiff has made no attempt to show “good cause” under Rule 4(m) for the failure
to complete service, and no “good cause” is otherwise reflected in the record before the
Court. Notwithstanding Plaintiff’s failure to show good cause, the undersigned still must
consider whether a permissive extension of time to complete service of process is
warranted. See Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995). The Tenth
Circuit has noted that a permissive extension of time may be appropriate where “policy
considerations might weigh in favor of granting a permissive extension of time.” Id. at
842. In making this determination, the Court must consider: (1) whether “the applicable
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statute of limitations would bar the refiled action”; (2) whether the plaintiff tried to follow
“the complex requirements of multiple service” when serving the United States, its
agencies, or employees; and (3) whether there is reason to protect a pro se plaintiff “from
consequences of confusion or delay attending the resolution of an in forma pauperis
petition.” Id. at 842 & n.8 (internal quotation marks omitted).
Here, the undersigned finds no policy considerations meriting additional time for
service. Plaintiff was warned that failure to accomplish service would result in dismissal
and was afforded an opportunity to justify his failure to do so. See Order of Nov. 3, 2025,
at 2; see also Smith v. Glanz, 662 F. App’x 595, 596, 597-98 (10th Cir. 2016). Defendant
Pioneer is not a federal officer, and although Plaintiff is appearing pro se and proceeding
in forma pauperis, he “must still comply with the same rules of procedure” as govern other
litigants. Dona’t v. Amazon.com/Kindle, 482 F. Supp. 3d 1137, 1144 (D. Colo. 2020).
“The prosecution of this lawsuit, including service on the defendants, is ultimately [the
plaintiff’s] responsibility.” Id.; accord Fields v. Okla. State Penitentiary, 511 F.3d 1109,
1113 (10th Cir. 2007) (“It is the plaintiff's responsibility to provide the United States
Marshal with the address of the person to be served[.]” (citation omitted)); Pemberton v.
Patton, 673 F. App’x 860, 864 (10th Cir. 2016) (“[T]he Marshals Service is not responsible
for lack of service where a plaintiff does not provide correct information required for
service.”).
Further, assuming Plaintiff’s statute of limitations has expired, a dismissal under
Rule 4(m) would not necessarily bar the refiling of Plaintiff’s claims. Oklahoma’s “savings
statute” may save certain claims because a Rule 4(m) dismissal represents a failure
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“otherwise than on the merits” within the meaning of title 12, section 100 of the Oklahoma
Statutes. Young v. Rios, No. CIV-15- 641-R, 2018 WL 2079509, at *2 (W.D. Okla. May
4, 2018). In other words, Plaintiffs may be able to refile any such state-law claims within
one year of dismissal without prejudice “although the time limit for commencing the action
shall have expired before the new action is filed.” Okla. Stat. tit. 12, § 100; see Young,
2018 WL 2079509, at *2.
Thus, the Espinoza factors weigh in favor of dismissal under Rule 4(m), and the
Court discerns no other policy considerations that might warrant a permissive extension in
this case.
CONCLUSION
Accordingly, all claims alleged by Plaintiff against Defendant Pioneer Web Design
are DISMISSED WITHOUT PREJUDICE for failure of service under Rule 4(m) of the
Federal Rules of Civil Procedure.
A separate judgment shall be entered.
IT IS SO ORDERED this 8th day of December, 2025.
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