Wortham v. American Family Insurance Company, No. C01-2067 (N.D. Iowa 9/17/2002)

• Court: U.S. District Court — Northern District of Iowa
• Writing for the Court: Mark W. Bennett
• Decision Date: 17 September 2002
• Docket Number: No. C01-2067.,C01-2067.
• Citation: Wortham v. American Family Insurance Company, No. C01-2067 (N.D. Iowa 9/17/2002) (N.D. Iowa 2002)
• Parties: MARIA WORTHAM, Plaintiff, v. AMERICAN FAMILY INSURANCE COMPANY, DAVE VORE, and BOB CARNINE, Defendants.

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MARIA WORTHAM, Plaintiff, v. AMERICAN FAMILY INSURANCE COMPANY, DAVE VORE, and BOB CARNINE, Defendants.

No. C01-2067.

United States District Court, N.D. Iowa, Waterloo Division.

September 17, 2002.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS' MOTION TO DISMISS

MARK W. BENNETT, Chief Judge.

I. INTRODUCTION

This matter is before the court on the defendants' (hereinafter referred to jointly as "American Family") Motion To Dismiss, filed March 28, 2002. (Doc. No. 6). In this motion, brought pursuant to Federal Rules of Civil Procedure 12(b)(4), 12(b)(5), and 12(b)(6), the defendants seek the dismissal of the plaintiff's employment discrimination action against them and argue: (1) the complaint should be dismissed because the plaintiff did not serve the defendants within the 120 days prescribed by Federal Rule of Civil Procedure 4(m); (2) defendant Bob Carnine should be dismissed because he still has not been properly served; and (3) if the complaint is not dismissed in its entirety, any Title VII and ADEA claims against defendants Bob Carnine and Dave Vore should be dismissed because there is no individual liability under those statutes.

The plaintiff, Maria Wortham, plainly admits that she did not serve defendants within the 120 day time limit, which expired on February 19, 2002. However, she moved for an extension of time to obtain service on the defendants on March 8, 2002. (Doc. No. 3). Chief Magistrate Judge John A. Jarvey granted this motion and extended the time until March 15, 2002. (Doc. No. 4). Wortham executed service on Vore and Carnine on March 8, 2002 and on American Family on March 11, 2002. Furthermore, the plaintiff asserts that, although technically deficient, she was in substantial compliance in serving a summons and petition on Carnine and, therefore, argues that the court should not dismiss him from this litigation. She believes that, if the summons served on Carnine was deficient, the proper remedy is to allow her to amend the summons. And finally, Wortham contends that, at this stage in the litigation, it is too early to determine whether Carnine and Vore are proper individual defendants under Title VII and the ADEA.

II. DISCUSSION

A. Untimely Service Of Process

"A district court has the power to dismiss a case for failure to comply with its rules." Marshall v. Warwick, 155 F.3d 1027, 1030 (8th Cir. 1998) (citing Moore v. St. Louis Music Supply Co., 539 F.2d 1191, 1193 (8th Cir. 1976) (dismissal for failure to prosecute)). Moreover, a court's decision whether or not to dismiss is discretionary, rather than mandatory. See Adams v. AlliedSignal Gen. Aviation Avionics, 74 F.3d 882, 886 (8th Cir. 1996). The Rule, furthermore, gives the district court discretion to grant an extension, even in the absence of good cause. See Panaras v. Liquid Carbonic Ind. Corp., 94 F.3d 338, 340 (7th Cir. 1996); AlliedSignal, 74 F.3d at 886; Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995); Petrucelli v. Bohringer & Ratzinger GMBH, 46 F.3d 1298, 1306 (3d Cir. 1995); cf. Henderson v. United States, 517 U.S. 654, 662-63 (1996) (stating in dicta, "Most recently, in 1993 amendments to the Rules, courts have been accorded discretion to enlarge the 120-day period even if there is no good cause shown."). Rule 4(m) specifically provides that the court shall allow additional time if there is good cause for the plaintiff's failure to effect service within the prescribed time period. More specifically, Federal Rule of Civil Procedure 4(m) provides that if the summons and complaint are not served upon a defendant within 120 days after the filing of the complaint, the court "shall dismiss the action without prejudice . . . or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period." FED. R. CIV. P. 4(m) (emphasis added).

In this case, the court granted an extension of time past the prescribed 120 day period, and the plaintiff effectuated service of process within that extended time period. The defendants did not move this court to reconsider Chief Magistrate Judge Jarvey's ruling, presumably because the order granting an extension was filed prior to the time process was effectuated on the defendants, and, thus, they were likely unaware of the extension. Because defendants moved solely on the ground that service was untimely and not on the ground that Judge Jarvey erred in granting an extension, this court will defer to Judge Jarvey's ruling and deny without prejudice the defendants' motion to the extent it is premised on insufficiency of service pursuant to Rule 12(b)(4).

B. Insufficiency Of Service Of Process On Carnine

Defendants also contend that Carnine should be dismissed from this action pursuant to Rule 12(b)(5) because he was not properly served. Federal Rule of Civil Procedure 4(a) states that a summons "shall . . . be directed to the defendant." The summons served on Carnine on March 8, 2002 was directed to American Family Insurance, not Carnine. However, the plaintiff argues that she was in substantial compliance with Rule 4(a) because Carnine is clearly identified as a defendant in the caption of the summons and the complaint, which were both served on Carnine. In short, Wortham asserts that, because Carnine was on notice, he was not prejudiced by the technical deficiency in service of process and, therefore, this defect does not justify dismissal.

"Technical defects contained within a summons do not justify dismissal unless a party is able to demonstrate actual prejudice." FDIC v. Swager, 773 F. Supp. 1244, 1249 (D.Minn. 1991) (citing Crane v. Battelle, 127 F.R.D. 174, 177 (S.D.Cal. 1989); Minnesota Mining & Mfg. Co. v. Kirkevold, 87 F.R.D. 317, 323 (D.Minn. 1980)); accord Libertad v. Welch, 53 F.3d 428, 440-41 (1st Cir. 1995) (ruling that trial court improperly dismissed action against two groups on ground of minor, technical defect in summons, i.e., summons's failure to state name of person served; those groups had fair notice of suit at all times during proceedings, they had adequate opportunity to protect their interests, and their counsel made general appearances at every stage of proceeding and had ample opportunity to defend against claims); Chan v. Society Expeditions, Inc., 39 F.3d 1398 (9th Cir. 1994) (holding technical defects in summons do not justify dismissal unless party is able to demonstrate actual prejudice); Zankel v. United States, 921 F.2d 432, 436 (2d Cir. 1990) (holding that service of process rule "should not be construed so narrowly or rigidly as to prevent relief from dismissal in every case in which a plaintiff's method of service suffers from a `technical defect'") (citing Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir. 1984); Jordan v. United States, 694 F.2d 833, 836 (D.C. Cir. 1982) (per curiam)). The Court of Appeals for the First Circuit has explained the significance of notice in the context of technical deficiencies of a summons as follows:

"[T]he root purpose underlying service of process is to ensure that a defendant receives fair notice of the suit and adequate opportunity to protect her interests." Jardines Bacata, Ltd. v. Díaz-Márquez, 878 F.2d 1555, 1559 (1st Cir. 1989). When an alleged defect in service is due to a minor, technical error, only actual prejudice to the defendant or evidence of a flagrant disregard of the requirements of the rules justifies dismissal. 4A C. WRIGHT AND A. MILLER, FEDERAL PRACTICE & PROCEDURE, Civ.2d § 1088; Benjamin v. Grosnick, 999 F.2d 590, 594 (1st Cir. 1993) (dismissal for defective service not required where defect in service did not prejudice defendant); see also, Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984) (dismissal for defective service should be granted only when defendant was prejudiced); United Food & Comm'l Workers Union Int'l v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984) (dismissal is generally not justified absent a showing of prejudice, and defendant's answer and general appearance in action should prevent any technical error from invalidating entire process).

Libertad, 53 F.3d at 440.

Because the court is satisfied that Carnine was on notice based on the captions of both the summons and the complaint and because the court cannot fathom that he suffered any prejudice,¹ dismissal would be an inappropriate remedy in this case. Instead, the court will grant the plaintiff leave to amend and correct the summons.

C. 12(b)(6) Motion As To Title VII And ADEA Claims Against Individual Defendants

The defendants also argue that, even if the court does not dismiss the entire action under 12(b)(4) and 12(b)(5), plaintiff's claims under Title VII and the Age Discrimination in Employment Act ("ADEA") against Carnine and Vore should be dismissed because these causes of action do not provide for individual liability. Because the court has concluded that Carnine has not yet been properly served, the court lacks jurisdiction to rule on the defendants' motion as to Carnine. See Dodco, Inc. v. American Bonding Co., 7 F.3d 1387, 1388 (8th Cir. 1993) ("If a defendant is improperly served, the court lacks jurisdiction over the defendant.") (citing Cohen v. Newsweek, Inc., 312 F.2d 76, 77-78 (8th Cir. 1963)). The court's ruling on this 12(b)(6) motion, therefore, relates solely to defendant Vore.

Federal Rule of Civil Procedure 12(b)(6) authorizes the district courts to dismiss any complaint which fails "to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) affords a defendant an opportunity to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true. Under this standard, a complaint should be dismissed only where it appears that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Hishon v. King & Spalding, 467...