Finnell v. Eppans

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

KYLE FINNELL, :

:

Plaintiff, : Case No. 1:20-cv-337

:

vs. : Judge Jeffery P. Hopkins

:

TIMOTHY EPPENS,

:

:

Defendant.

:

ORDER ADOPTING REPORT AND RECOMMENDATION

This matter is before the Court on the Report and Recommendation (Doc. 56) issued

by Magistrate Judge Peter B. Silvain on July 19, 2023. The Magistrate Judge recommends

that Defendant’s motion to dismiss (Doc. 37) be denied and that time for service be extended

under Federal Rule of Civil Procedure 4(m) and Ohio Rule of Civil Procedure 3(A) for an

additional 45-days from the date of this Order. Plaintiff and Defendant have each objected to

the R&R.1 See Docs. 58, 59. The Court has reviewed the comprehensive findings and

conclusions of the Magistrate Judge and has considered de novo all the filings in this case.

Having done so, the Court determines that Defendant’s objections should be overruled and

the R&R (Doc. 56) should be ADOPTED with modification.

I. STANDARD OF REVIEW

If a party objects within the allotted time to a report and recommendation, the Court

“shall make a de novo determination of those portions of the report or specified proposed

1 The Magistrate Judge’s Report and Recommendations resolves Defendant’s motion to dismiss in Plaintiff’s

favor. Therefore the Court need not address Plaintiff’s objections, which appear to reiterate his opposition to

the underlying motion to dismiss.

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); see also

Fed. R. Civ. P. 72(b). Upon review, the Court “may accept, reject, or modify, in whole or in

part, the findings or recommendations made by the magistrate judge.” Id., § 636(b)(1).

II. LAW & ANALYSIS

Defendant raises two objections. First, that the Magistrate Judge erred in finding that

there is good cause to extend time for service under Fed. R. Civ. P. 4(m). And second, that

the Magistrate Judge erred in finding that this action is not time-barred.

A. There is good cause to extend time for service here.

The Court will turn first to Defendant’s objection to the Magistrate Judge’s conclusion

that there is good cause to extend time for service. Relying on Byrd v. Stone, 94 F.3d 217, 219

(6th Cir. 1996), the Magistrate Judge determined that there was a showing of “automatic”

good cause to extend the time for service since Plaintiff is proceeding in forma pauperis.

Defendant counters Byrd and cites to several cases which he believes stand for the proposition

that Plaintiff had an affirmative duty to act when the Court and the U.S. Marshal’s Service

neglected to effectuate service following this Court’s previous order. See Doc. 29.

“[W]hen a plaintiff is proceeding in forma pauperis, the court is obligated to issue

plaintiff’s process to a United States Marshal who must in turn effectuate service upon the

defendants.” Byrd, 94 F.3d at 219 (citing 28 U.S.C. § 1915(d), Fed. R. Civ. P. 4(c)(2)). With

this in mind, the Sixth Circuit determined in Byrd that an “utter failure of the clerk and the

Marshals Service to accomplish their respective duties to issue and serve process for [a]

plaintiff proceeding in forma pauperis” confers a showing of automatic good cause to extend

time for service under Rule 4(m). Id. at 220. Subsequent cases in the Sixth Circuit, however,

have determined—case-by-case—that a plaintiff’s failure to act weighs against a finding of

good cause. For example, when considering good cause in Staub v. Nietzel, No. 22-5384, 2023

WL 3059081, at *9 (6th Cir. April 24, 2023), the Sixth Circuit explained:

In the particular circumstances of this case — the passage of six years along

with [the plaintiff’s] failure to inquire about service after [the defendant]

declined to waive service, when combined with [the plaintiff’s] failure to

provide any reasonable explanation for sitting idly by for six years — supports

the district court’s finding of a lack of good cause.

See also Reed-Bey v. Pramstaller, 607 F. App’x 445, 450 (6th Cir. 2015) (affirming dismissal

where waiver of service was returned unexecuted four times and record did not show that

plaintiff tried to discover or provide information about the defendants’ whereabouts).

The ultimate question that Defendant poses is whether Plaintiff’s failure to act between

the Court’s June 4, 2021 Order (Doc. 29) and the Court’s October 7, 2022 Order (Doc. 32)

renders the Magistrate Judge’s good cause analysis erroneous. It does not. Although the

outcome differs from Staub, the Magistrate Judge here engaged in a similar analysis that

involved weighing the particular circumstances of this case against the Sixth Circuit’s holding in

Byrd to determine whether good cause exists to extend time for service under Rule 4(m).

Additionally, the period at issue here is significantly less than the six-year period deemed

unacceptable in Staub and less than the two-year period deemed acceptable in Byrd.

Even so, the circumstances of this case constitute good cause under Rule 4(m). After

prior failures to effect service—which were at no fault of Plaintiff—the Court ordered that the

time for service be extended sua sponte and that the matter be remanded to the then-assigned

magistrate judge for further proceedings. See Doc. 29. But the Court ultimately neglected to

issue an order directing the Clerk and U.S. Marshals Service to reissue service. As an added

complication, which was in no way attributable to Plaintiff, this case was reassigned during

the period at issue to the currently assigned Magistrate Judge,2 see Doc. 31, who subsequently

recognized the Court had not taken the necessary steps to reissue service consistent with the

June 4, 2021 Order. This Court therefore finds no error in the Magistrate Judge’s good cause

determination.

B. Plaintiff’s claim is not time barred.

Defendant next challenges the Magistrate Judge’s conclusion that this action is not

time barred. This Court arrives at the same conclusion as the Magistrate Judge, albeit in a

different way. Namely, this Court finds it appropriate to rely on the Federal Rules of Civil

Procedure, rather than its Ohio counterpart, to determine the timeliness of this action.

Plaintiff’s claim of excessive force against Defendant under 42 U.S.C. § 1983 is the

only count remaining. This is governed by the two-year statute of limitations set forth in Ohio

Revised Code § 2305.10. See LRL Properties v. Portage Metro Hous. Auth., 55 F.3d 1097, 1105

(6th Cir. 1995) (“[T]he appropriate statute of limitations for 42 U.S.C. § 1983 civil rights

actions arising in Ohio . . . requires that actions . . . be filed within two years after their

accrual.”) (quoting Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989)) (en banc). It is

undisputed that Plaintiff’s excessive force claim accrued on June 3, 2019.

The Magistrate Judge relied on Coleman v. Dep’t of Rehab. & Corr., 46 F. App’x 765 (6th

Cir. 2002) and Webster v. Spears, 664 F. App’x 535 (6th Cir. 2016) to conclude that Ohio’s

procedural rules apply when determining whether Plaintiff’s claim is time barred. See Doc.

56, PageID 509. In both Coleman and Webster, the Sixth Circuit considered whether the

respective plaintiffs had commenced or attempted to commence their actions in order to

properly avail themselves of Ohio’s savings statute. See O.R.C. § 2305.19. In so doing, the

2 This case was also later re-assigned to the undersigned District Judge on December 21, 2022. See Doc. 45.

Sixth Circuit explained that because the court was using the state’s statute of limitations, the

court had to also use its procedural rules affecting the statute of limitations, including Ohio’s

savings statute. Coleman, 46 F. App’x at 769; Webster, 664 F. App’x at 537.

With this in mind, the Magistrate Judge relied on Ohio’s procedural rules, including

Ohio Civ. R. 3(A), to determine whether Plaintiff’s excessive force claim is barred by the two-

year statute of limitations set forth in O.R.C. § 2305.10. Rule 3(A) provides that “[a] civil

action is commenced by filing a complaint with the court, if service is obtained within one year

from such filing upon a named defendant . . . .” Ohio Civ. R. 3(A) (emphasis added). Here,

Plaintiff did not obtain service within one year of filing his complaint. However, relying on

Ohio law, the Magistrate Judge concluded that Plaintiff should be entitled to an enlargement

of time to obtain service under Ohio Civ. R. 3(A) since his failure to perfect service resulted

from circumstances outside his control. See e.g., Eichenberger v. Woodlands Assisted Living

Residence L.L.C., 2014-Ohio-5354, 25 N.E.3d 355 (10th Dist.); Scott v. Orlando, 2 Ohio App.

3d 333, 442 N.E.2d 96 (6th Dist. 1981). Accordingly, by finding that he should be entitled to

an enlargement of time, the Magistrate Judge further concluded that Plaintiff’s excessive force

claim is not time barred. Such a conclusion follows the Sixth Circuit’s reasoning in Webster:

The Ohio Supreme Court has made clear that a plaintiff has no

obligation to initiate service of process within the statute of limitations

in order to timely “commence” an action, and has established that the

meaning of “commence” is governed by Ohio Civ. R. 3(A), not by Ohio

Rev. Code § 2305.17. Seger v. For Women Inc., 110 Ohio St. 3d 451, 453,

2006 Ohio 4855, 854 N.E.2d 188 (Ohio 2006). Thus, one may

commence one’s case in compliance with Rule 3(A) even if process does

not issue within the limitations period because Civ. R. 3(A) does not

require a praecipe or request for a summons to be filed within the

limitations period. Id. Rather than measuring whether service has

occurred prior to the expiration of the statute of limitations, we should

look to see whether service has been accomplished within a year of the

filing of the complaint for a case to be “commenced.” See Civ. R. 3(A).

Webster, 664 F. App’x at 538.

Though both Coleman and Webster contemplated the applicability of Ohio’s procedural

rules when borrowing Ohio’s statute of limitations, both courts did so when considering the

viability of those plaintiffs’ claims under Ohio’s savings statute, which is not at issue here. In

this instance, it is more appropriate to rely on the Sixth Circuit’s guidance in Macon v. ITT

Cont’l Baking Co., 779 F.2d 1166 (6th Cir. 1985). In that case, the court considered the

applicability of a service deadline when borrowing another federal statute’s limitation period.

In doing so, the Sixth Circuit reasoned that “even if a state statute of limitations is borrowed

and that state’s rules also provide that service, not filing, tolls the statute of limitations, ‘the

prevailing rule among the federal courts of appeals is that Rule 3 [of the Federal Rules of Civil

Procedure] governs the time of commencement of the action in cases where a federal matter

or cause of action is involved.’” Macon, 779 F.2d at 1172 (quoting Wells v. City of Portland, 102

F.R.D. 796, 800 (D. Or. 1984). The Supreme Court instructed the same in West v. Conrail, 481

U.S. 35 (1987):

Although we have not expressly so held before, we now hold that when

the underlying cause of action is based on federal law and the absence

of an express federal statute of limitations makes it necessary to borrow

a limitations period from another statute, the action is not barred if it

has been “commenced” in compliance with [Federal Rule of Civil

Procedure] 3 within the borrowed period.

…

Inevitably our resolution of cases or controversies requires us to close

interstices in federal law from time to time, but when it is necessary for us

to borrow a statute of limitations for a federal cause of action, we borrow no more

than necessary.

West, 481 U.S. at 39–40 (emphasis added). Since the circumstances here differ from Coleman

and Webster, the Federal Rules, not the Ohio Rules, of Civil Procedure control.

Unlike the analogous Ohio Rule, under Rule 3 of the Federal Rules of Civil Procedure

an action is commenced at the time a complaint is filed. See Fed. R. Civ. P. 3; see also Henderson

v. United States, 517 U.S. 654, 657 n.2 (1996) (“In a suit on a right created by federal law, filing

a complaint suffices to satisfy the statute of limitations.”). This means that when Plaintiff filed

his complaint on June 15, 2020, his claim commenced within the two-year statute of

limitations which accrued on June 3, 2019. Defendant’s objection is overruled.

III. CONCLUSION

Thus far, Plaintiff has done all that is required considering the facts and circumstances

of this case to accomplish service. Byrd, 94 F.3d at 219. While it is in the best interest of a

plaintiff proceeding in forma pauperis to inquire when service is not timely issued by the Clerk

and the United States Marshal, Plaintiff has not acted unreasonably here.

Accordingly, for the reasons set forth above, the Court ADOPTS the Magistrate

Judge’s R&R (Doc. 56) with modification. It is therefore ORDERED that:

1. Defendant’s Motion to Dismiss (Doc. 37) is DENIED;

2. The time for service is EXTENDED for good cause shown under Fed. R. Civ.

P. 4(m) for an additional 45-days from the date of this Order; and

3. The United States Marshal is DIRECTED to serve (1) a copy of the Complaint,

(2) summons, (3) two copies of the waiver of service of process form, (4) a

prepaid means of returning the waiver of service form, (5) the Report and

Recommendation (Doc. 56), and (6) this Order, upon Defendant by regular

U.S. Mail, with such mail directed to the following: Kathleen H. Bailey, Esq.,

Chief Assistant Prosecuting Attorney, Hamilton County Prosecutor’s Office,

230 E. 9th Street, Suite 4000, Cincinnati, Ohio 45202.

IT IS SO ORDERED.

July 2, 2024

effety (P. Wopkins

United States District Judge