Opinion

Onwuagba v. Garfield County Criminal Justice Authority

Court
District Court, W.D. Oklahoma
Filed
Feb 28, 2023
Cited by
0 cases
Authority
More cited than 28.6%

“If the plaintiff fails to show good cause, the district court must still consider whether a permissive extension of time may be warranted.”

How later courts described this case

  • “If the plaintiff fails to show good cause, the district court must still consider whether a permissive extension of time may be warranted.”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

SHARON ONWUAGBA, as )

Administrator of the ESTATE OF )

JAIMESSE SAD’E THOMPSON, )

)

Plaintiff, )

)

vs. ) Case No. CIV-22-989-D

)

GARFIELD COUNTY CRIMINAL )

JUSTICE AUTHORITY, et al., )

)

Defendants. )

O R D E R O F D I S M I S S A L

Before the Court is Plaintiff’s Motion to Show Cause Why Service Has Not Been

Perfected and Request for Extension of Time to Issue the Summons [Doc. No. 5]. The

Motion was filed in response to the Order to Show Cause [Doc. No. 4] under Fed. R. Civ.

P. 4(m), directing Plaintiff to show why this action should not be dismissed for failure to

effect service of process within 90 days after filing the Complaint.

Plaintiff identifies in her Motion two reasons why she has not attempted service and

needs more time: 1) the Complaint fails to name the proper plaintiff because Sharon

Onwuaga is not the court-appointed administrator of the decedent’s estate; and 2) counsel

is still investigating the identities of defendants named in the Complaint as “John/Jane

Does.” See Mot. at 2. Plaintiff states that she plans to amend her pleading, and requests

additional time for service to “avoid unnecessary expenses of serving summons[es] to all

named parties.” See Mot. at 3. Plaintiff asks the Court to find that she has shown good

cause for lack of service and, alternatively, to exercise its discretion under Rule 4(m) to

grant a permissive 30-day extension of time to complete service. Id.

Upon consideration, the Court finds that Plaintiff has failed to show good cause for

lack of timely service. Although the Tenth Circuit has not conclusively defined “good

cause” for purposes of Rule 4(m), the court “has interpreted the phrase narrowly, rejecting

inadvertence or neglect as ‘good cause’ for untimely service.” Broitman v. Kirkland (In

re Kirkland), 86 F.3d 172, 174 (10th Cir. 1996); see Despain v. Salt Lake Area Metro Gang

Unit, 13 F.3d 1436, 1439 (10th Cir. 1994); accord Murphy v. City of Tulsa,556 F. App’x

664, 668 (10th Cir. 2014). “The plaintiff who seeks to rely on the good cause provision

must show meticulous efforts to comply with the rule.” Kirkland, 86 F.3d at 176;

Despain, 13 F.3d at 1438. In this case, Plaintiff has made no attempt to serve the named

defendants. Instead, she apparently made a deliberate, strategic decision to delay service

until she was ready to amend her Complaint.

The question thus becomes whether the Court should exercise its discretion to allow

additional time for service. See Espinoza v. United States, 52 F.3d 838, 841 (10th Cir.

1995) (“If the plaintiff fails to show good cause, the district court must still consider

whether a permissive extension of time may be warranted.”). In making this decision, a

district court should consider any pertinent factors or policy considerations. Id. at 842.

Examples include prejudice to the plaintiff from a dismissal “if the applicable statute of

limitations would bar the refiled action;” prejudice to the defendants if additional time is

allowed; a complicated service rule, such “the complex requirements of multiple service”

on federal defendants; and protecting a pro se plaintiff “from consequences of confusion

or delay attending the resolution of an in forma pauperis petition.” Jd. at 842 & n.8.

No pertinent circumstance appears to be present here.! Plaintiff does not identify

any factor that weighs in favor of letting her press forward in this case. Under the

circumstances presented, where no prejudice from a dismissal has been shown and Plaintiff

has not articulated a persuasive reason to allow additional time for service, the Court finds

that this action should be dismissed without prejudice to refiling.

IT IS THEREFORE ORDERED that Plaintiff's Motion for Extension of Time is

DENIED. This action is DISMISSED WITHOUT PREJUDICE to a future filing. A

separate judgment of dismissal shall be entered.

IT IS SO ORDERED this 28" day of February, 2023.

\ : .

QO. yf

TIMOTHY D. DeGIUSTI

Chief United States District Judge

' The Court notes that this action under 42 U.S.C. § 1983 borrows state-law timeliness

tules, including the saving statute of Okla. Stat. tit. 12, § 100. See Eastom v. City of Tulsa, 783

F.3d 1181, 1184 (10th Cir. 2015) (citing Brown v. Hartshorne Pub. Sch. Dist. No. 1,926 F.2d 959,

962 (10th Cir. 1991), abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 114 (2002); Williams v. City of Guthrie, 109 F. App’x 283, 286 (10th Cir. 2004)).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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