Doe v. University of Arkansas - Fayetteville

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

JOAN DOE PLAINTIFF

v. No. 5:21-CV-05231

UNIVERSITY OF ARKANSAS –

FAYETTEVILLE et al. DEFENDANTS

OPINION AND ORDER

Before the Court is Plaintiff’s motion (Doc. 48) to amend or alter judgment as to

Defendants University of Arkansas – Fayetteville, University of Arkansas School of Law, Board

of Trustees of the University of Arkansas, and Donald Bobbitt as President and CEO of the

University of Arkansas System (the “University Defendants”). The University Defendants filed a

response in opposition (Doc. 49). The motion will be denied.

Plaintiff’s motion stems from the Court’s March 28, 2022 opinion and order (Doc. 46)

granting the University Defendants’ motion (Doc. 33) to dismiss. After finding that Defendant

University of Arkansas – Fayetteville did not have capacity to be sued, and the remaining

University Defendants had not been properly served with process despite two prior instructions

from the Court to Plaintiff on what is required to serve a defendant, the Court dismissed the claims

against University of Arkansas – Fayetteville with prejudice for lack of capacity and dismissed

without prejudice the claims against the remaining University Defendants for insufficient service

of process.1 Plaintiff argues the Court erred in its opinion because the University Defendants were

0F

properly served, Defendant University of Arkansas School of Law is subject to suit, and she

additionally points to an error by the Clerk of Court in failing to issue a summons to counsel for

1 The Court’s complete analysis and background information can be found in the opinion

and order (Doc. 46).

the University Defendants.

Plaintiff brings her motion under Federal Rules of Civil Procedure 59(e) and 60(b). “Rule

59(e) motions serve a limited function of correcting ‘manifest errors of law or fact or to present

newly discovered evidence.’” Innovative Home Health Care, Inc. v. P.T.-O.T. Assocs. of the Black

Hills, 141 F.3d 1284, 1286 (8th Cir. 1998) (citing Hagerman v. Yukon Energy Corp., 839 F.2d

407, 413 (8th Cir. 1988)).

Plaintiff’s motion does not provide any persuasive argument, precedent, or citations to the

record to demonstrate the Court has committed a manifest error of law or fact, nor does Plaintiff

present newly discovered evidence such that would have affected the Court’s judgment. Plaintiff’s

motion largely restates the arguments presented in Plaintiff’s original briefing as to why service of

process was proper and cites no new case law to support the proposition that the Court’s order was

in any way in error. Additionally, Plaintiff reargues that Defendant University of Arkansas –

Fayetteville may be sued under the Americans with Disabilities Act. The Court adheres to its

previous ruling which fully addressed the arguments Plaintiff makes in her present motion, and

therefore finds there has been no manifest error of law or fact.

Additionally, Plaintiff has presented no new evidence such that would change the outcome

of the Court’s ruling. See Briscoe v. City of St. Louis, 690 F.3d 1004, 1015-16 (8th Cir. 2012) (on

a Rule 59(e) motion, any newly discovered evidence must “probably produce a different

outcome”). Plaintiff has provided one email exchange between herself and the Clerk’s office dated

after the Court’s order, in which the Clerk’s office confirms it failed to issue a summons to Joe

Cordi, counsel for the University Defendants, despite Plaintiff’s summons request for Mr. Cordi.

(see Doc. 48-6, p. 5). However, this email exchange changes nothing because, as explained in this

Court’s previous opinion and order, sending a summons to counsel for the University Defendants

is insufficient service under the Federal Rules and Arkansas law. (See Doc. 46, p. 6). Though Mr.

Cordi conditionally agreed to accept service on behalf of the University Defendants in response to

Plaintiff’s request for waiver of service, (see Doc. 48-5, p. 1), Plaintiff failed to file that waiver as

required by Federal Rule of Civil Procedure 4(d)(4). Plaintiff knowingly did not file the summons

because it would extend the time for the University Defendants to file an answer to 60 days. Mr.

Cordi never agreed to accept service outside of the limited context of a waiver of service. Because

Plaintiff has not presented any evidence to demonstrate that Mr. Cordi was designated by

appointment to accept service on behalf of the University Defendants, even had the summons

issued and been served on Mr. Cordi it would have been insufficient to effect service under the

Federal Rules or Arkansas law. See Ark. R. Civ. P. 4(f)(12); Fed. R. Civ. P. 4(j). Additionally, as

outlined in the Court’s previous order, Plaintiff did not properly serve the amended complaint upon

the University Defendants. (Doc. 46, p. 6). Thus, even had Plaintiff requested summons for the

University Defendants, instead of Mr. Cordi, no defendants were served the amended complaint.

Therefore, no new evidence has been presented to persuade the Court that it must alter or amend

its judgment under Rule 59(e).

Federal Rule of Civil Procedure 60(b) provides a list of circumstances under which a party

may be relieved from a final judgment, order, or proceeding, including mistake, inadvertence,

surprise, or excusable neglect; newly discovered evidence; fraud, misrepresentation, or misconduct

by an opposing party, or; “any other reason that justifies relief.” The Eighth Circuit has recognized

that Rule 60(b) “provides for extraordinary relief which may be granted only upon an adequate

showing of exceptional circumstances.” United States v. Young, 806 F.2d 805, 806 (8th Cir. 1986).

It is important to note, however, that a Rule 60(b) motion “is not a vehicle for simple reargument

on the merits.” Broadway v. Norris, 193 F.3d 987, 990 (8th Cir. 1999). Plaintiff’s motion does

not present argument that would allow the Court to find any of the Rule 60(b) circumstances

present, therefore, the motion will be denied.

Finally, Plaintiff requests extension of time to serve the University Defendants under

Federal Rule of Civil Procedure 4(m). Rule 4(m) instructs that if a defendant is not served within

90 days the Court must dismiss the action without prejudice as to the unserved defendant, “[b]ut

if the plaintiff shows good cause for the failure, the court must extend the time for service for an

appropriate period.” “To warrant a discretionary extension, the plaintiff must establish excusable

neglect.” Kurka v. Iowa City, 628 F.3d 953, 957 (8th Cir. 2010). To begin, because 90 days have

not passed from the filing of the amended complaint, Rule 4(m) is inapplicable. The Court has

however already entered judgment in this case. As such, the case is closed, and the Plaintiff will

not be granted an extension under Rule 4(m) to serve any defendant.

IT IS THEREFORE ORDERED that Plaintiff’s motion (Doc. 48) to amend or alter

judgment is DENIED.

IT IS SO ORDERED this 21st day of April, 2022.

/s/P. K. Holmes, III

P.K. HOLMES, III

U.S. DISTRICT JUDGE