Runnebaum v. Magellan Healthcare, Inc.
| Decision Date | 19 September 2019 |
| Docket Number | CIVIL ACTION No. 19-2151-KHV |
| Parties | KENDALL RUNNEBAUM, Plaintiff, v. MAGELLAN HEALTHCARE, INC., Defendant. |
| Court | U.S. District Court — District of Kansas |
Kendall Runnebaum brings suit against her former employer, Magellan Healthcare, Inc. On July 10, 2019 Magistrate Judge Gwynne E. Birzer ordered plaintiff to show cause in writing why the Court should not dismiss this action with prejudice for lack of prosecution under Rule 41(b), Fed. R. Civ. P. This matter comes before the Court on plaintiff's Response To Order To Show Cause (Doc. #5) filed July 24, 2019. For reasons stated below, the Court finds that dismissal with prejudice is not appropriate and exercises its discretion to extend the time for service of process to October 1, 2019. In addition, the Court orders plaintiff's counsel to show cause on or before October 3, 2019 why he should not be sanctioned and referred to the Kansas Disciplinary Administrator for professional discipline.
On March 18, 2019, plaintiff filed a complaint against defendant alleging unlawful employment practices in violation of 42 U.S.C. § 2000e-3 and the Kansas Act Against Discrimination, K.S.A. § 44-1001 et seq. Complaint (Doc. #1). As of June 17, 2019, the deadline for service under Rule 4(m), Fed. R. Civ. P., plaintiff had not served the summons and complaint on defendant. On June 24, 2019, the chambers of Magistrate Judge Gwynne E. Birzer contacted plaintiff's counsel by email regarding the status of this action. Judge Birzer's chambers informed counsel that if chambers did not receive any formal filings or informal status reports which indicated the status of service, Judge Birzer would proceed with a show cause order. Counsel did not respond. On July 10, 2019, Judge Birzer found that the deadline for service had expired and that plaintiff had yet to secure service on defendant. Notice And Order To Show Cause (Doc. #4). Accordingly, Judge Birzer ordered plaintiff to show good cause in writing why the Court should not dismiss this action with prejudice for lack of prosecution under Rule 41(b), Fed. R. Civ. P. Id.
On July 24, 2019, plaintiff's counsel filed a response to the show cause order. Response To Order To Show Cause (Doc. #5). Plaintiff's counsel asserts that "plaintiff had neglected and failed to comply with a material obligation owed to [counsel]" but that he and plaintiff "have conferred and counsel has agreed to modify his fee contract and proceed with prosecution of this case." Id. Counsel filed the summons with the response to the show cause order. As of the date of this order, the docket does not reflect that plaintiff has secured service on defendant.
Under Rule 4(m) plaintiff has 90 days from filing the complaint to serve defendant with the summons and complaint. If plaintiff does not timely serve defendant, the Court may dismiss the action without prejudice or order that plaintiff effect service within a specified time. Fed. R. Civ. P. 4(m). If plaintiff shows good cause for the failure to serve defendant within 90 days, the Court will extend the time for service. Id. Absent a showing of good cause, the Court may still grant a permissive time extension or dismiss the case without prejudice. See id. In addition, pursuant to Rule 4(l)(1), Fed. R. Civ. P., unless a United States marshal or deputy marshal secures service, plaintiff must file the server's affidavit with the Court as proof of service. Under Rule 41(b), if plaintiff fails to comply with the Federal Rules of Civil Procedure or a Court order, the Court may sua sponte dismiss the action with or without prejudice. See Davis v. Miller, 571 F.3d 1058, 1060 (10th Cir. 2009). Dismissal of an action with prejudice is a severe sanction which the Court employs only as a last resort. Id. at 1061 (citation omitted). Before dismissing a case with prejudice, the Court considers the following factors:
(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.
Id. (citing Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992)). Dismissal is an appropriate sanction only when the aggravating factors outweigh the judicial system's strong predisposition to resolve cases on their merits. Id. Id. (quoting In re Baker, 744 F.2d 1438, 1440, 1442 (10th Cir. 1984) (en banc)) (internal quotation marks omitted). The purpose of the first three factors is to help the Court determine whether the lawyer or the client is at fault and, accordingly, where the Court should lodge the impact of the sanction. Id. (citing Ocelot Oil Corp. v. Sparrow Industries, 847F.2d 1458, 1465 (10th Cir. 1988)).
On balance, the Ehrenhaus factors counsel against dismissal with prejudice. As to the first factor, the record does not reflect that plaintiff's failure to timely serve defendant has actually prejudiced defendant. As to the second factor, although plaintiff's failure to comply with Rule 4(m) has slowed the Court's ability to efficiently manage its docket, it has not significantly interfered with the judicial process. As to the third factor, plaintiff's counsel - not plaintiff - is culpable. As to the fourth factor, Judge Birzer's show cause order warned plaintiff that dismissal for lack of prosecution was a possible sanction. As to the fifth and final factor, it is not clear whether dismissal of this case - as an extreme sanction which the Court only imposes as a last resort - is necessary to deter counsel's misconduct here or elsewhere. See Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). However, as discussed below, the Court orders plaintiff's counsel to show cause why the Court should not sanction him and refer him to the Kansas state bar disciplinary administration. Considering the Ehrenhaus factors, the Court finds that dismissal with prejudice is not warranted at this time.
Plaintiff has not shown good cause for the failure to complete service. See In re Kirkland, 86 F.3d 172, 176 (10th Cir. 1996) (). Even where plaintiff does not show good cause, however, the Court considers whether a permissive extension of time is warranted or whether the case should be dismissed without prejudice. Espinoza v. United States, 52 F.3d 838, 841 (10th Cir.1995). Even without a showing of good cause, courts prefer to decide cases on their merits rather than on technicalities. See Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982). In making its determination whether to grant a permissive extension, the Court considers whether an extension would prejudice defendant, whether defendant was on notice of the lawsuit and whether the applicable statute of limitations would bar the refiled action. Espinoza, 52 F.3d at 842.
At this point, dismissal of the complaint might bar some of plaintiff's claims. This fact counsels against dismissal. Moreover, the record does not indicate that defendant has suffered prejudice from the delay in service. Under these circumstances, the Court finds that a permissive extension is warranted.
As noted, plaintiff's counsel - not plaintiff - is culpable for the failure to timely serve defendant. In his response to the show cause order, plaintiff's counsel asserts that plaintiff had failed to comply with a material obligation owed to him, but that counsel has now agreed to modify the fee contract and proceed with prosecution of this case.
A fee dispute does not justify counsel's failure to timely serve defendant. As a practical matter, retained counsel are often required to represent clients...
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