United States District Court, E.D. Arkansas, Helena Division
RAMON P. HANSBERRY SR. PLAINTIFF
ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT DEFENDANT
Kristine G. Baker, United States District Judge.
the Court is plaintiff Ramon P. Hansberry Sr.'s motion
for extension of time to accomplish service of process (Dkt.
No. 5). Mr. Hansberry requests a 45 day extension from
February 21, 2017, in which to accomplish service
(Id., ¶ 9). Also before the Court is a motion
to dismiss filed by defendant Arkansas State Highway and
Transportation Department (“AHTD”) (Dkt. No. 8).
In its motion to dismiss, the AHTD states that the Court
should dismiss Mr. Hansberry's complaint for failing to
accomplish service within the 90 day window prescribed by
Rule 4 of the Federal Rules of Civil Procedure. Mr. Hansberry
has responded to the AHTD's motion to dismiss (Dkt. No.
10). The AHTD requests leave to file a reply regarding its
motion to dismiss (Dkt. No. 12).
initial matter, the Court grants the AHTD's request for
leave to file a reply (Dkt. No. 12). The Court directs the
AHTD to file its reply within seven days from the entry of
this Order. The AHTD attached to its request for leave a copy
of the reply it intends to file (Dkt. No. 12, Exhibit 1). The
Court has considered that filing in ruling on the remaining
pending motions. For the following reasons, the Court grants
Mr. Hansberry's motion for extension of time (Dkt. No. 5)
and denies the AHTD's motion to dismiss (Dkt. No. 10).
November 23, 2016, Mr. Hansberry filed his complaint alleging
that the AHTD had violated Title VII of the Civil Rights Act
of 1964 (“Title VII”), 42 U.S.C. § 2000e
et seq., by engaging in race and age discrimination
(Dkt. No. 1, at 1). The deadline to accomplish service of
process upon the AHTD was February 21, 2017. See
Fed. R. Civ. P. 4(m). On February 9, 2017, Mr. Hansberry
mailed a certified letter restricted delivery to the
AHTD's Director, Scott E. Bennett (Dkt. No. 5, ¶ 3).
The United States Postal Service returned said letter to Mr.
Hansberry on March 3, 2017, as it was unclaimed
(Id., ¶ 5). Writing on the envelope indicates
that service was attempted by the United States Postal
Service on February 10, 2017, and February 27, 2017 (Dkt. No.
10, at 4). Mr. Hansberry was able to accomplish service on
the AHTD by service of process on March 17, 2017; 24 days
after the deadline for service had passed (Dkt. No. 5, ¶
March 30, 2017, Mr. Hansberry filed a motion for extension of
time to accomplish service of process, which requested a 45
day extension from February 21, 2017, to accomplish service
of process (Id.. ¶ 9). In support of his motion
for extension of time, Mr. Hansberry states that he believes
that the defendant purposely evaded service of process and
that Mr. Bennett was spending time in the Arkansas
Legislature, making service upon him more difficult
(Id.. ¶¶ 6, 8). Mr. Hansberry also states
in support of his motion that a state agency, like the AHTD,
should have an agent for service of process to receive
certified letters on behalf of the director (Id.,
April 7, 2017, the AHTD filed its motion to dismiss for
untimely service of process (Dkt. No. 8). The AHTD maintains
in its motion that Mr. Hansberry has failed to show good
cause or excusable neglect for his delay in service
(Id., at 2). The AHTD states that Mr. Hansberry can
offer no legitimate reason for waiting 78 days after filing
his complaint to initiate his first service attempt by mail
(Id., at 8). Accordingly, the AHTD states that Mr.
Hansberry's complaint should be dismissed for
insufficient service of process pursuant to Federal Rule of
Civil Procedure 12(b)(5) (Id.).
April 17, 2017, Mr. Hansberry responded to the AHTD's
motion to dismiss (Dkt. No. 10). Mr. Hansberry asserts that
he attempted to serve the AHTD through its Mr. Bennett in a
timely and permitted manner (Id., at 5). Mr.
Hansberry states that Mr. Bennett refused to accept the
letter or permit one of his agents to accept the letter
(Id.). Mr. Hansberry also claims that state agencies
typically have persons on their staff who can receive
certified mail and that Mr. Bennett's failure to
designate such a person is an attempt to thwart service of
4(m) of the Federal Rules of Civil Procedure states:
If a defendant is not served within 90 days after the
complaint is filed, the court . . . . 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). Accordingly, if the Court finds good
cause for the delay, the Court must extend time for service,
thus ending the inquiry. Adams v. Allied Signal Gen.
Aviation Avionics, 74 F.3d 882, 887 (8th Cir. 1996).
cause is likely (but not always) to be found when  the
plaintiff's failure to complete service in timely fashion
is a result of the conduct of a third person, typically the
process server,  the defendant has evaded service of the
process or engaged in misleading conduct,  the plaintiff
has acted diligently in trying to effect service or there are
understandable mitigating circumstances, or  the plaintiff
is proceeding pro se or in forma
pauperis.” Kurka v. Iowa Cnty., 628 F.3d
953, 957 (8th Cir. 2010) (quoting 4B Charles Alan Wright
& Arthur R. Miller, Federal Practice and
Procedure § 1137, at 342 (3d ed.2002)). Good cause
requires at least “excusable neglect” - good
faith and some reasonable basis for noncompliance with the
rules. Adams, 74 F.3d at 887.
even without good cause shown, the Court still may extend the
time for service rather than dismiss the case without
prejudice if the plaintiff demonstrates excusable neglect.
Colasante v. Wells Fargo Corp., 81 F. App'x 611,
613 (8th Cir. 2003).This authorizes the Court
“to relieve a plaintiff of the consequences of an
application of this subdivision even if there is no good
cause shown.” Adams, 74 F.3d at 887 (quoting
Rule 4 Advisory Committee Notes (1993)). While the statute of
limitations does not require the ...