The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
HORACE CROSBY PLAINTIFF
V. CASE NO. 5:20-CV-5046
BRIAN LITTLE; BRAE HARPER;
RANDY BARRETT; COYE CRIPPS;
GENTRY SCHOOL DISTRICT,
BOARD OF EDUCATION; SUBTEACH
USA, LLC; and EDUCATION
SOLUTIONS SERVICES, LLC DEFENDANTS
OPINION AND ORDER GRANTING
DEFENDANTS’ MOTIONS TO DISMISS
There are two motions before the Court. Defendants Brian Little; Brae Harper;
Randy Barrett; Coye Cripps; and Gentry School District, Board of Education (collectively,
the “District Defendants”) have filed a Motion to Dismiss (Doc. 9) and a Brief in Support
(Doc. 10). Defendants Subteach USA, LLC and Education Solutions Services, LLC
(collectively, the “Contractor Defendants”) have also filed a Motion to Dismiss (Doc. 15)
and a Brief in Support (Doc. 16). Plaintiff filed a Response in Opposition to both Motions
(Doc. 23). For the reasons below, both Motions to Dismiss (Docs. 9 & 15) are GRANTED.
Mr. Crosby filed his Complaint in this matter on March 16, 2020. On June 23,
ninety-nine days later, the Clerk’s Office contacted Plaintiff’s counsel, Bruce Wick, to
remind him that the ninety-day period for service of process had elapsed. The Clerk’s
Office also provided him with a summons request form at his request. Another twenty-
one days passed before the request form was filed on July 14, 2020. The summonses
were issued that same day. Another week passed before Mr. Crosby mailed the
summonses and copies of the Complaint on July 21, 2020. See Doc. 21. Thus, one
hundred and twenty-seven days elapsed between when Mr. Crosby filed his Complaint
and when he attempted service of process over the Defendants in this matter.
The District Defendants and the Contractor Defendants have each moved to
dismiss this case for insufficient service of process pursuant to Rule 12(b)(5) of the
Federal Rules of Civil Procedure.1 “In a Rule 12(b)(5) motion, the party making the
service has the burden of demonstrating validity when an objection to the service is
made.” Roberts v. USCC Payroll Corp., 2009 WL 88563, at *1 (N.D. Iowa Jan 13, 2009)
(internal quotation marks omitted). If a defendant is not served within the time provided
by the Federal Rules of Civil Procedure, then 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). “If plaintiff fails to show good
cause, the court still may extend the time for service rather than dismiss the case without
prejudice.” Kurka v. Iowa Cty., 628 F.3d 953, 957 (8th Cir. 2010) (emphasis in original).
“To warrant a discretionary extension, the plaintiff must establish excusable neglect.” Id.
The Eighth Circuit has explained that good cause
is likely (but not always) to be found when (1) the plaintiff’s failure to
complete service in a 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.
1 Defendants allege multiple ways in which service of process was insufficient. Since the
Court grants the motion on pursuant to Rule 4(m), it will not address the other arguments
regarding the adequacy of service.
Id. (internal alterations, quotation marks, and citations omitted). “[S]uch a determination
is entrusted to the sound and considerable discretion of the district court . . . .” Id. Here,
Mr. Crosby’s argument relies solely on his “counsel’s Rule 4(m) affidavit of good cause”
included with his brief in opposition to the Motions. See Doc. 23, p. 6. Therein, Plaintiff’s
counsel indicates that prior to March 16, 2020, he had been operating his law practice
from the public library near his home, relying on use of the library’s computers and fax
machine, among other resources. After the Complaint was filed in this case, however,
the library was temporarily closed due to the COVID-19 pandemic and then reopened
under guidelines that did not permit the type of use Mr. Wick previously made of the
facility. Instead, Mr. Wick needed to acquire a computer and other equipment to be able
to conduct his law practice at home, which he reports that he was unable to do until July
because of resource constraints. Plaintiffs’ counsel avers that “[w]orking by [him]self
unable to afford assistance, [he] could not have prepared and mailed the Summons and
copies of the Complaint any earlier than [he] actually did.” (Doc. 23, ¶ 10).
This explanation does not persuade the Court that the Plaintiff “acted diligently in
trying to effect service” or faced “understandable mitigating circumstances.” Having taken
on a client, Mr. Wick had an obligation to prosecute his client’s case in a diligent manner.
Rule 1.3 of the Arkansas Rules of Professional Conduct requires that a lawyer “shall act
with reasonable diligence and promptness in representing a client.” This includes the
responsibility to “pursue a matter on behalf of a client despite opposition, obstruction or
personal inconvenience to the lawyer.” Rule 1.3, cmt. 1. Mr. Crosby has asked this Court
to take judicial notice of the fact that the President declared COVID-19 to be a national
emergency beginning March 1, 2020, and the Secretary of Health and Human Services
declared a public health emergency on January 31, 2020. See Doc. 26. But Mr. Wick’s
failure to effect timely service of process cannot be attributed solely to the COVID-19
pandemic. Rather, when access to the library was restricted, Mr. Wick failed to make
alternative arrangements in a timely manner to ensure that he could continue to represent
his client adequately. An attorney’s obligation of diligence under the Rules of Professional
Conduct extends even to the recommendation that a sole practitioner “prepare a plan that
designates another competent lawyer to review client files” to “prevent neglect of client
matters in the event of a sole practitioner’s death or disability.” Rule 1.3, cmt. 5. Mr. Wick
had an obligation to develop a plan that would allow him to “prevent neglect” of his client’s
case, and there is no indication that he did so here.
Mr. Wick does not indicate that he tried to find ways of fulfilling his obligations in
the four months between when he filed Mr. Crosby’s Complaint and when he requested
the summonses, nor did Mr. Wick ever seek an extension of the deadline for service from
the Court before its expiration. In particular, it strains credulity that to think that Mr. Wick,
knowing of his obligation under the Federal Rules to effect service of process within ninety
days, allowed that deadline to lapse without ever informing the Court about his changed
circumstances or seeking an extension. Even once he was reminded of the deadline by
the Clerk’s Office, Mr. Wick allowed an additional twenty-one days to pass before
requesting summonses and an additional week before mailing the required documents.
In sum, Mr. Wick allowed an additional month to pass before breathing even one word of
explanation to the Court for his delay, and the Court cannot conclude that Mr. Wick has
shown good cause requiring an extension of the deadline for service of process pursuant
to Rule 4(m).
For these same reasons, the Court does not consider Mr. Crosby’s insufficient
service of process to be the result of excusable neglect and will not exercise its discretion
to extend the deadline for service even in the absence of good cause. In this context,
excusable neglect is “an elastic concept,” which depends on the equities arising from the
particular facts at bar. See Kurka, 628 F.3d at 959. The Eighth Circuit instructs that in
determining whether neglect was excusable, four factors are especially important: “(1) the
possibility of prejudice to the defendant, (2) the length of the delay and the potential
impact on judicial proceedings, (3) the reason for the delay, including whether the delay
was within the party's reasonable control, and (4) whether the party acted in good faith.”
Id. But importantly, “[t]hese factors do not bear equal weight as the reason for delay is
generally a key factor in the analysis.” Id. The Court acknowledges that there are no
allegations of prejudice or bad faith. However, since, as discussed above, the Court does
not find excusable Mr. Wick’s failure to seek alternative methods of fulfilling his obligations
within the period for service of process or to seek an enlargement of time before the
deadline expired, it declines to grant an extension.2
This is true despite the possibility that the statute of limitations may bar Mr. Crosby
from refiling this action should the instant Motions be granted.3 Under such
circumstances, “the district court must weigh the effect on the party requesting the
extension against the prejudice to the defendant.” Kurka, 628 F.3d at 959. “However,
2 For example, the tasks required here could have been accomplished with a phone, pen,
paper, and some postage stamps––all of which should have been reasonably available
to any licensed attorney attempting to practice law, even during the pandemic.
3 Mr. Crosby includes with his brief in opposition a copy of the letter from Subteach USA
removing him from its list of substitute teachers dated March 14, 2017. Therefore, the
Court imagines that the limitations period may have run on March 14, 2020, one day after
Mr. Crosby opened his civil case in this Court.
the running of the statute of limitations does not require the district court to extend time
for service of process.” /d. (internal quotation marks omitted). Given the entirely
inexcusable nature of the delay in this case, even the running of the statute of limitations
does not persuade the Court to extend the deadline for service of process.
For these reasons, the District Defendants’ Motion to Dismiss (Doc. 9) is
GRANTED and the Contractor Defendants’ Motion to Dismiss (Doc. 15) is GRANTED.
The case is dismissed without prejudice pursuant to Rule 4(m).
IT IS SO ORDERED on this 23 day of September 2020.
ten
MORTY If BROOKS
~ UNITED STATES DISTRICT JUDGE