Kurka v. Iowa County, Iowa

• Decision Date: 15 December 2010
• Docket Number: No. 09-2849,09-2849
• Citation: 628 F.3d 953
• Parties: Becky S. KURKA, Appellant, v. IOWA COUNTY, IOWA; Iowa County Sheriff's Department, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

628 F.3d 953 Becky S. KURKA, Appellant, v. IOWA COUNTY, IOWA; Iowa County Sheriff's Department, Appellees. No. 09-2849. United States Court of Appeals, Eighth Circuit. Submitted: Sept. 20, 2010. Filed: Dec. 15, 2010.

William H. Roemerman, argued, Cedar Rapids, IA, for appellant.

David E. Schrock, argued, Charles A. Blades, on the brief, Cedar Rapids, IA, for appellee.

Before RILEY, Chief Judge, MELLOY and COLLOTON, Circuit Judges.

RILEY, Chief Judge.

Becky S. Kurka appeals the district court's ¹ denial of her motion to extend time to effect service of summons pursuant to Fed.R.Civ.P. 4(m), and the grant of Iowa County, Iowa, and the Iowa County Sheriff's Department's (collectively, the County) motion to dismiss. Kurka contends an extension was warranted because the Clerk of the United States District Court for the Northern District of Iowa failed to issue a summons as directed by Local Rule 5.2g.2.² The district court found Kurka did not demonstrate "good cause" to warrant a mandatory extension or "excusable neglect" to warrant a discretionary extension. We affirm.

I. BACKGROUND

On July 31, 2008, Kurka commenced an action in the United States District Court for the Northern District of Iowa against the County, alleging gender discrimination and retaliation in violation of 42 U.S.C. § 2000e et seq. Rule 4(m) required Kurka to serve process upon the County within 120 days of filing the complaint. Fed.R.Civ.P. 4(m). The 120-day deadline expired November 28, 2008.

On December 11, 2008, Kurka's counsel contacted counsel for the County regarding the need to submit a joint discovery and scheduling order. The County's attorney advised Kurka's counsel that the County was unaware of any court action. Kurka's counsel investigated and determined the clerk had not issued a summons as directed by Local Rule 5.2g.2. After being prompted by Kurka, the clerk issued the summons on December 16, 2008. The district court's docket did not record any activity in the case between Kurka filing her complaint on July 31, 2008, and the clerk issuing the summons on December 16, 2008.

After speaking with counsel for the County on December 11, 2008, Kurka's counsel submitted a proposed scheduling order and discovery plan (scheduling order) to the district court without input from the County's attorney. In the scheduling order, Kurka's counsel averred "[c]ounsel have conferred and submit the following case information and proposed dates for case management," followed by detailed information regarding deadlines and the expected disposition of the case. Kurka's counsel maintains he submitted the ex parte scheduling order on his signature alone to comply with the district court's deadline and the County's counsel did not object. Kurka's counsel further maintains he explained his reason for filing the ex parte scheduling order to a magistrate judge's law clerk. The district court doubted the truth of Kurka's counsel's explanation.

On December 17, 2008, Kurka filed a motion to extend time to effect service ofsummons, arguing good cause existed for extending the time because the clerk had not issued a summons as directed by Local Rule 5.2g.2. The County resisted Kurka's motion. Kurka's brief in support of her motion explained her delay in serving the County, but did not refer to Kurka's ex parte scheduling order. Kurka's counsel informed the district court that his office procedure was to wait for the summons from the clerk before arranging for service of process. Because the clerk did not issue the summons, Kurka's counsel's "ministerial procedure was never triggered."

Kurka indicates she began the process of serving the County immediately upon receipt of the summons, but had some difficulty because Kurka could not use the sheriff, the only process server in the county and a defendant in the case. Kurka's commercial process server from a neighboring county was unable to serve the County on Thursday or Friday due to a blizzard, but executed service the following Monday, December 22, 2008.

That same date, the County filed a motion to dismiss pursuant to Rules 4( l ) and (m) and 12(b) for failure to serve timely process. Kurka filed her resistance on January 2, 2009. On March 30, 2009, the district court denied Kurka's motion to extend time and granted the County's motion to dismiss without prejudice.

Before analyzing Kurka's and the County's respective motions, the district court determined Kurka's scheduling order was "nothing more than a series of false representations to the court." Addressing the motions, the district court decided Kurka failed to show good cause or excusable neglect warranting a retroactive extension of the time to serve the County. The district court found the clerk's error was not good cause for Kurka's extended inaction in the case because "a reasonable practitioner would not fail to place any redundancies in his internal office procedure such that he might completely forget about a case for almost five months."

With respect to excusable neglect, Kurka's counsel avers the statute of limitation applying to Kurka's discrimination claim had expired, barring Kurka from refiling. The district court found the excusable neglect decision was a closer matter than the good-cause decision and opined the court normally would be inclined to grant the extension because the clerk of court failed to issue a summons as the clerk is required to do, the County had notice of the suit prior to formal service, and dismissal without prejudice was presumably tantamount to dismissal with prejudice in light of the applicable statute of limitation. However, the district court found the facts of this case "highly unusual" because, in the district court's view, Kurka was not diligent following discovery of the error, and also "lie[d] to the court." As a result, the district court declined to exercise its discretion to extend the deadline and dismissed the case without prejudice to refiling.

Kurka filed a motion to alter or amend judgment pursuant to Fed.R.Civ.P. 59(e), or alternatively Fed.R.Civ.P. 60(b)(1) and 60(b)(6), which the district court denied. Kurka appeals.

II. DISCUSSION

Kurka argues the district court made erroneous factual findings and disregarded and misapplied applicable law, and wrongly dismissed her complaint for failing to serve the County within 120 days of filing her complaint. Under Rule 4(c)(1), "[t]he plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m)." Rule 4(m) provides in relevant part,

(m) Time Limit for Service. If a defendant is not served within 120 days after the complaint is filed, the court [on motion of a defendant] 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.

"Thus, under Rule 4(m), if the district court concludes there is good cause for plaintiff's failure to serve within 120 days, it shall extend the time for service. If plaintiff fails to show good cause, the court still may extend the time for service rather than dismiss the case without prejudice." Adams v. AlliedSignal Gen. Aviation Avionics, 74 F.3d 882, 887 (8th Cir.1996). To warrant a discretionary extension, the plaintiff must establish excusable neglect. See Colasante v. Wells Fargo Corp., 81 Fed.Appx. 611, 613 (8th Cir.2003) (per curiam) (unpublished) (citing Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d 932, 934 (7th Cir.2002)).

We review for abuse of discretion the district court's decision to dismiss an action for untimely service and to grant or deny an extension of time pursuant to Rule 4(m). See Adams, 74 F.3d at 887-88. We also review the district court's denial of a Rule 59(e) motion to alter or amend a judgment for abuse of discretion.³ See Christensen v. Qwest Pension Plan, 462 F.3d 913, 920 (8th Cir.2006) (citation omitted). "An abuse of discretion occurs where the district court fails to consider an important factor, gives significant weight to an irrelevant or improper factor, or commits a clear error of judgment in weighing those factors." Gen. Motors Corp. v. Harry Brown's, LLC, 563 F.3d 312, 316 (8th Cir.2009).

A. Good Cause

Rule 4(m) does not define good cause, and courts have not given conclusive meaning to the phrase. See 4B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1137 (3d ed.2002); see also Colasante, 81 Fed.Appx. at 613 ("There is no comprehensive definition of what constitutes good cause sufficient to warrant a mandatory extension under Rule 4(m)."). "A showing of good cause requires at least 'excusable neglect'—good faith and some reasonable basis for noncompliance with the rules." Adams, 74 F.3d at 887. "[G]ood cause is likely (but not always) to be found when [1] the plaintiff's failure to complete service in timely fashion is a result of the conduct of a third person, typically the process server, [2] the defendant has evaded service of the process or engaged in misleading conduct, [3] the plaintiff has acted diligently in trying to effect service or there are understandable mitigating circumstances, or [4] the plaintiff is proceeding pro se or in forma pauperis." Wright & Miller § 1137, supra at 342.

At its core, however, the standard of good cause, like many others in the law, is necessarily amorphous. Whether or not it has been satisfied is largely dependent upon the facts of each individual case. It is for this very reason that such a determination is entrusted to the sound and considerable discretion of the district court in the first instance.

Colasante, 81 Fed.Appx. at 613.

Here, Kurka contends the clerk's failure to deliver the summons as required by Local Rule 5.2g.2, combined with Kurka's efforts to serve the County after discovering the error, constitute good cause warranting a mandatory extension. Accordingto Kurka, in Lujano v....