Hendry v. Schneider, 95-8049
| Decision Date | 19 June 1997 |
| Docket Number | No. 95-8049,95-8049 |
| Citation | 116 F.3d 446 |
| Parties | 74 Fair Empl.Prac.Cas. (BNA) 185, 71 Empl. Prac. Dec. P 44,800, 38 Fed.R.Serv.3d 231, 97 CJ C.A.R. 952 Carol Ann HENDRY, Plaintiff-Appellee, v. Dewey SCHNEIDER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
R. Kimball Mosier, Parsons, Davies, Kinghorn & Peters, Salt Lake City, UT, for Defendant-Appellant.
Bruce S. Asay (Bernard P. Haggerty with him on the brief), Murane & Bostwick, Cheyenne, WY, for Plaintiff-Appellee.
Before ANDERSON and BRISCOE, Circuit Judges, and McWILLIAMS, Senior Circuit Judge.
The chronology out of which the present controversy arises is essential to an understanding of our resolution of the issues raised on appeal. On or about February 3, 1993, Carol Ann Hendry filed the present action in the United States District Court for the District of Wyoming. On February 12, 1993, Hendry filed an amended complaint in the same court. Named as defendants in the amended complaint were Dewey Schneider
1. ("Schneider"), Union Pacific Railroad Company ("UP") and Lodging Enterprises, Inc., doing business as Green River Railroad Inn ("Inn").
In her amended complaint, Hendry alleged that she was employed as a waitress by the Inn in Green River, Wyoming. In this regard, Hendry went on to allege that the Inn was under contract with UP to provide meals and lodging for those UP employees traveling through Green River. According to the amended complaint, Schneider was an engineer employed by UP who often frequented the Inn as a part of his employment with UP. Without going into unnecessary detail, Hendry alleged that on the evening of April 20, 1992, Schneider was working as an engineer for UP when he registered at the Inn to obtain crew rest, and that at about 1:30 a.m on April 21, 1992, Schneider, in an intoxicated condition, came into the restaurant where she was working and began harassing her, making sexual remarks and that he then "exposed himself" to her. The amended complaint also went on the state that thereafter Schneider continued his sexual harassment of her over a period of several months.
Hendry's amended complaint was based on Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e), et. seq., Chapter IX of Title XXVII of the Wyoming Statutes, and the Common Law of Wyoming. On September 14, 1993, the district court granted UP's motion for summary judgment and at the same dismissed Hendry's action against the Inn. Hendry v. Schneider, No. 93-CV-0042-B, 1993 WL 443815 (D.Wyo. Sept.14, 1993). Hendry has not appealed those orders. Hence, we are now only concerned with Hendry's claims against Schneider, all of which were state claims.
Schneider, a resident of Utah, was served with a summons and complaint in Wyoming on August 7, 1993, 176 days after Hendry filed her amended complaint and 56 days beyond the 120 day time limit provided for in Fed.R.Civ.P. 4(j), the applicable rule then in effect. Hendry did not file a motion for an extension of time to effect service on Schneider as provided in Fed.R.Civ.P. 6(b), although on July 7, 1993, she did file a precipe for alias summons and complaint, which the court issued that same date.
As above stated, Schneider was served a summons and complaint on August 7, 1993, and, under Fed.R.Civ.P. 12(a)(1)(A), Schneider had 20 days to respond thereto. He did not respond within 20 days, and on September 3, 1993, Hendry filed a motion for default judgment against Schneider with the district court. In that motion, counsel for Hendry stated that, although the amended complaint was filed on February 12, 1993, he was unable to obtain service on Schneider until August 7, 1993. He then set forth in considerable detail his unsuccessful efforts to serve Schneider at an earlier date. Counsel's affidavit was affixed to that motion. Counsel then went on to state that, after having been served with process on August 7, 1993, Schneider had not filed a response thereto within 20 days, i.e., August 27, 1993, as required by Fed.R.Civ.P. 12(a)(1)(A) and, pursuant to Fed.R.Civ.P. 55(b), moved for entry of default judgment against Schneider.
On September 7, 1993, a person representing himself as counsel for Schneider, telephonically contacted a United States Magistrate Judge in Wyoming, who, upon request, granted Schneider an extension of time until September 13, 1993, to respond to the amended complaint. The extension, however, was labeled by the magistrate judge as "conditionally--the extension will not preclude plaintiff from pursuing motion for default."
On September 13, 1993, counsel for Schneider filed a motion to dismiss Hendry's amended complaint. In that motion, counsel for Schneider noted, inter alia, that service had not been obtained on Schneider until August 7, 1993, more than 120 days after the filing of Hendry's amended complaint on February 12, 1993. On the date Schneider filed his motion to dismiss, i.e., September 13, 1993, Fed.R.Civ.P. 4(j) (replaced on December 1, 1993, by Fed.R.Civ.P. 4(m)) was the applicable rule. 1
On January 19, 1994, Hendry filed a response in opposition to Schneider's motion to dismiss and also asked for a hearing on her motion for default judgment. In that motion, counsel again explained why Schneider was not served within 120 days from February 12, 1993, the date when the amended complaint was filed, and alleged that during that period of time Schneider had "willfully and intentionally avoided service of process." Counsel concluded by asking the district court to deny Schneider's motion to dismiss and to set a hearing on Hendry's motion for default judgment.
On November 4, 1994, a hearing was held at the conclusion of which the district court granted Hendry's motion for entry of default and took Schneider's motion to dismiss under advisement. At the same time, the district court requested supplemental briefing on the question of whether the magistrate judge had authority to grant Schneider an extension of time to file a response to the amended complaint. On November 14, 1994, Hendry filed a memorandum in further support of her motion for entry of default judgment, specifically addressing the issue of the magistrate judge's authority to extend Schneider's time to answer. On November 15, 1994, Schneider filed a memorandum in opposition to the district court's declaration of default.
On January 9, 1995, the district court reaffirmed its order of November 4, 1994, and allowed its order of default to stand. It then proceeded to set a hearing to determine the amount of damages. As concerns Schneider's motion to dismiss, the district court, pursuant to Fed.R.Civ.P. 12(f), "struck" the motion, holding that it was not only untimely, but also was "without legal merit." In reaffirming its prior order of default, as well as striking Schneider's motion to dismiss the amended complaint, the district court held that Schneider's "evasion of service" constituted "good cause" for Hendry's failure to serve within 120 days. The court also noted that such tended to negate Schneider's claim that in seeking an extension of time to respond to the summons and complaint, he, himself, was acting in "good faith." Further, the district court made note of the fact that the extension order of the magistrate judge explicitly stated that it was "conditional" only, and that Hendry could pursue her motion for default, which was filed four days before the extension was sought.
A hearing was held on April 24, 1995 to determine Hendry's damages. At the hearing, both Hendry and her new husband testified. Schneider was not personally present and no witness was called on his behalf. Hendry testified as to her loss of income, as well as to her great emotional stress caused by Schneider's continued harassment. She also testified as to her "counselling sessions," and the cost thereof. Her husband then testified concerning his wife's "emotional scars." As indicated, Schneider was not present at the hearing, nor were any witnesses called on his behalf. It was on such state of the record that the district court entered judgment in favor of Hendry in the amount of $50,000 as compensatory damages. Hendry sought three times that amount as punitive damages, i.e., $150,000. The district court, however, only awarded punitive damages in the amount of $10,000. Schneider appeals the judgment thus entered. We find no error and affirm.
Schneider's position on appeal is that the district court erred in entering an order holding him in default because service was not effected within 120 days from the date when the amended complaint was filed, and, for that reason, and others, the district court should have granted his motion to dismiss the amended complaint. Schneider further argues that the district court erred in fixing Hendry's compensatory damages at $50,000 because the court erroneously admitted into evidence, over objection, excerpts of testimony by Dr. Douglas Goff, a clinical psychologist who treated Hendry, given at his deposition to which he (Schneider) was not a party.
We, parenthetically, note that under the "old" Rule 4(j) if service of summons and complaint is not made within 120 days after filing of the complaint, and the plaintiff cannot show good cause for such failure to thus serve, the action shall be dismissed without prejudice, upon the court's own initiative with notice to the plaintiff or upon motion. The "new" Rule 4(m), which replaced the "old" Rule 4(j) on December 1, 1993, similarly provides that if service of process is not made upon a defendant within 120 days after filing of the complaint, the district court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice. In addition, Rule 4(m) goes on to state that the court may direct that service be effected within a specified time, if the plaintiff shows "good cause" for the failure to serve.
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