Chestang v. Alcorn State Univ.

• Decision Date: 17 May 2011
• Docket Number: Civil Action No. 5:10–cv–67–DCB–JMR.
• Citation: 820 F.Supp.2d 772,277 Ed. Law Rep. 1070
• Parties: Rudy CHESTANG, III, Plaintiff v. ALCORN STATE UNIVERSITY; Alcorn State University Board of Trustees; and Dr. Alvin Simpson, Individually and in His Official Capacity, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

277 Ed. Law Rep. 1070

820 F.Supp.2d 772

Rudy CHESTANG, III, Plaintiff

v.ALCORN STATE UNIVERSITY; Alcorn State University Board of Trustees; and Dr. Alvin Simpson, Individually and in His Official Capacity, Defendants.

Civil Action No. 5:10–cv–67–DCB–JMR.

United States District Court,S.D. Mississippi,Western Division.

May 17, 2011.

Brian Thaddeus Nix–Phv, Law Office of Brian Nix, Chicago, IL, Terence L. High, The High Law Firm, PLLC, Jackson, MS, for Plaintiff.

Amanda Green Alexander, Alexander & Watson, PA, Jackson, MS, Alan M. Purdie, Purdie & Metz, PLLC, Ridgeland, MS, for Defendants.

ORDER

DAVID BRAMLETTE, District Judge.

This cause comes before the Court on DefendantAlvin Simpson's Motion to Dismiss, or In the Alternative, Motion for Summary Judgment[docket entry nos. 46 and 47] and Motion to Dismiss for Lack of Subject Matter Jurisdiction and/or Failure to State a Claim Upon Which Relief Can Be Granted [docket entry no. 56].Having carefully considered said Motions, the Responses thereto, applicable statutory and case law, and being otherwise fully advised in the premises, this Court finds and orders as follows:

I.FACTS AND PROCEDURAL HISTORY

Plaintiff, Rudy Chestang, III, was a student at Alcorn State University from the fall of 2005 through the spring of 2008.DefendantAlvin Simpson apparently served as Chestang's advisor and taught a class in which Chestang was enrolled in the spring of 2008.¹Chestang alleges that Simpson sexually harassed him by making suggestive comments and, on one occasion, rubbing against him, until Chestang eventually withdrew from Alcorn and transferred to another university.

Chestang filed suit against Alcorn, its Board of Trustees, and Dr. Simpson, both individually and in his official capacity, on June 10, 2009 in the United States District Court for the Northern District of Illinois.The District Court for the Northern District of Illinois transferred the action to this Court on April 19, 2010.The Complaint asserts claims for sexual harassment and discrimination in violation of Title IX of the Education Act of 1972, 20 U.S.C. § 1681, et seq.; violation of due process and equal protection under 42 U.S.C. § 1983; and intentional infliction of emotional distress, negligence, and assault and battery under state law.Chestang did not serve Simpson with a copy of the Complaint until October 27, 2009, 139 days after the Complaint was filed.

Simpson filed a Motion to Dismiss, or in the Alternative a Motion for Summary Judgment on April 23, 2010 arguing that he had not been properly served with the Complaint; that Title IX claims cannot be asserted against an individual; and that the state law claims had not been exhausted as required by the Mississippi Tort Claims Act.Simpson filed a second Motion to Dismiss on June 20, 2010 urging dismissal because he is immune from suit in his official capacity based on the Eleventh Amendment;Section 1983 claims do not lie against persons in their official capacity; the facts as alleged do not state claims for violation of due process or equal protection; and the state law claims are time-barred, procedurally bared, or otherwise inactionable under the Mississippi Tort Claims Act.

II.STANDARD FOR MOTION TO DISMISS

When considering a motion to dismiss under Rule 12(b)(6), the district court must accept all well-pleaded facts as true and view the facts in a light most favorable to the plaintiff.Baker v. Putnal,75 F.3d 190, 196(5th Cir.1996).The plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level.”Bell Atlantic Corp. v. Twombly,550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929(2007).The Supreme Court has stated that “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”Ashcroft v. Iqbal,556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868(2009)(citations omitted).To have facial plausibility, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”Id.“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ”Id. at 1950(citingFed.R.Civ.P. 8(a)(2)).

“[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.”Twombly,550 U.S. at 546, 127 S.Ct. 1955.Furthermore, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.’ ”Id.(quotingScheuer v. Rhodes,416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90(1974)(overruled on other grounds)).

III.ANALYSIS

A.Failure to Properly Serve Complaint

Simpson argues that the Complaint should be dismissed for insufficient service of process pursuant to Federal Rule of Civil Procedure 4(m) because it was served on him more than 120 days after the Complaint was filed.That Rule provides:

If a defendant is not served within 120 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.

Fed.R.Civ.P. 4(m).Chestang does not dispute that Simpson was served more than 120 days after the Complaint was filed (139 days to be exact); instead, he argues that good cause exists to excuse timely service because Simpson received notice of the lawsuit and a copy of the Complaint through his attorneys in connection with Chestang's request that Simpson waive service.²The exact sequence of events is unclear from the record before the Court but it appears that Chestang's attorney, Brian Nix, mailed a copy of the Complaint and a request that Simpson waive service to Michael Bonner, an attorney for Simpson, around the same time the Complaint was filed on June 10, 2009.Shortly thereafter, on July 6, 2009, an attorney named Alan Purdie wrote to Nix, stating that Purdie represented Simpson for purposes of Chestang's suit and any correspondence should be addressed to Purdie.In that July 6 letter, Purdie further informed Nix that:

Simpson advises he has not been served with process of the Court, and I am advised that you provided his private attorney, Mike Bonner, esquire, with a copy of the complaint and a waiver.Before waiving process, I wanted to inquire as to whether you would agree to transfer venue of this action to the proper court in Mississippi.July 6, 2009 letter [docket entry no. 58–2].Nix then responded to Purdie that he was unable to agree to transfer of the case to Mississippi but did not mention service.The parties apparently never agreed to transfer the case to Mississippi (it was transferred only after the Illinois court granted Simpson's Motion to Transfer which Chestang opposed) or for Simpson to waive service of process.Chestang then served Simpson on October 27, 2009, outside the time permitted for service of process under the federal rules.

Rule 4(m) permits a district court to dismiss a case without prejudice if the plaintiff fails to serve the defendant within 120 days of filing the complaint.Millan v. USAA Gen. Indemn. Co.,546 F.3d 321, 325(5th Cir.2008)(citingThompson v. Brown,91 F.3d 20, 21(5th Cir.1996)).If, however the plaintiff can establish good cause for failing to serve the defendant, the court must extend the time for service.Id.Good cause requires “at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.”Lambert v. United States,44 F.3d 296, 299(5th Cir.1995).Here, the Court finds that Chestang cannot establish good cause for failing to serve Simpson.Chestang's attorney, Nix, wrote to Simpson's former attorney, Bonner, and to Simpson's present attorney, Purdie, requesting that Simpson waive service.Purdie specifically informed Nix that Simpson would not agree to waive service unless Chestang agreed to transfer the venue to Mississippi.Accordingly, Nix was undoubtedly aware that Simpson had not agreed to waive service of process.Moreover, the fact that Nix requested that Simpson waive process indicates that he knew that service (or waiver) was required.Nix simply failed to meet that requirement.He has not shown good cause for that failure.Gonzalez v. Thomas Built Buses, Inc.,268 F.R.D. 521, 526–27(M.D.Penn.2010)(holdingplaintiff did not shown good cause for failure to serve where sent request to defendant to waive service and defendant refused).

Even if the plaintiff lacks good cause (as is the case here), the court has discretionary power to extend the time for service.Millan,546 F.3d at 325.A discretionary extension may be warranted, “for example, if the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or conceals a defect in attempted service.”Id.(quotingFed.R.Civ.P. 4(m) advisory committee's note (1993)).Here, the Complaint does not state when the events that form the basis of this lawsuit allegedly occurred but the Court surmises that they occurred primarily in the spring of 2008.As it is now the spring of 2011, the Court finds that the statutes of limitations on most of Chestang's claims likely have run.SeeJones v. B.L. Develop. Corp.,940 So.2d 961, 964–65, 967(Miss.Ct.App.2006)(holding one-year statute of limitations governs claims for assault and battery and intentional infliction of emotional distress arising out of sexual harassment);Cuvillier v. Taylor,503 F.3d 397, 401(...