Combs

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

JOVANNA COMBS, )

)

Plaintiff, )

)

v. ) Case No. CIV-25-478-G

)

VENITA HOOVER et al., )

)

Defendants. )

ORDER

Now before the Court is a Motion to Dismiss (Doc. No. 13) filed by Defendant

Board of Law Library Trustees of Oklahoma County. Plaintiff Jovanna Combs has filed a

Response (Doc. No. 14), and Defendant has replied (Doc. No. 15).

I. Background

Plaintiff initiated this employment discrimination action in Oklahoma County

District Court on February 14, 2025, naming multiple defendants. See Pet. (Doc. No. 1-1).

On April 30, 2025, another defendant (now dismissed) removed the case to this Court. See

Notice of Removal (Doc. No. 1); Pl.’s Notice of Voluntary Dismissal (Doc. No. 6).

Defendant Board of Law Library Trustees of Oklahoma County (“the Board”) is a

five-member board consisting of:

(a) . . . [T]wo district judges of the county . . . .

(b) The district attorney for the district that includes the county in which the

law library is located, or an assistant district attorney who is designated

by the district attorney.

(c) Two members of the county bar association . . . .

Okla. Stat. tit. 20, § 1204; see Def.’s Mot. to Dismiss at 3.

On May 12, 2025, Plaintiff filed a Proof of Service as to the Board (Doc. No. 9). In

the Proof of Service, Plaintiff’s attorney declared that on May 9, 2025, she had served the

summons on Vicki Behenna, Oklahoma County District Attorney, as the individual

“designated by law to accept service of process on behalf of” the Board. Id. at 1.

On August 6, 2025, Robert Don Gifford entered an appearance in this case as

counsel for the Board. See Doc. No. 12. Attorney Gifford is also a member of the Board.

Def.’s Reply at 2; see Okla. Stat. tit. 20, § 1204(c).

II. Federal Rules of Civil Procedure 4 and 12(b)(5)

A plaintiff in a federal civil lawsuit is required to have each defendant served with

summons and a copy of the pleading by a date certain. See Fed. R. Civ. P. 4(c)(1), (m).

“Personal service under Rule 4 . . . notif[ies] a defendant of the commencement of an action

against him.” Okla. Radio Assocs. v. Fed. Deposit Ins. Corp., 969 F.2d 940, 943 (10th Cir.

1992). Further, such service “provides the mechanism” for the court to assert jurisdiction

“over the person of the party served.” Id.; see also Murphy Bros., Inc. v. Michetti Pipe

Stringing, Inc., 526 U.S. 344, 350-51 (1999). “Effectuation of service is a precondition to

suit . . . .” Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998). Thus, a

plaintiff’s unexcused failure to comply with Rule 4 allows a district court to dismiss the

action. See Jones v. Frank, 973 F.2d 872, 873-74 (10th Cir. 1992); Fed. R. Civ. P. 4(m).

A motion based on “insufficient service of process” under Rule 12(b)(5) of the

Federal Rules of Civil Procedure challenges the plaintiff’s mode of serving process on the

moving party. Fed. R. Civ. P. 12(b)(5); Craig v. City of Hobart, No. CIV-09-53-C, 2010

WL 680857, at *1 (W.D. Okla. Feb. 24, 2010) (citing 5B Charles A. Wright & Arthur R.

Miller, Federal Practice & Procedure § 1353 (3d ed. 2004)). In opposing a Rule 12(b)(5)

motion, the plaintiff bears the burden of showing that he or she has “complied with all

statutory and due process requirements.” Craig, 2010 WL 680857, at *1. “Motions under

Federal Rules 12(b)(4) and 12(b)(5) differ from the other motions permitted by Rule 12(b)

somewhat in that they offer the district court a course of action—quashing the process

without dismissing the action—other than simply dismissing the case when the defendant’s

defense or objection is sustained.” 5B Wright & Miller, supra, § 1354; accord Gray v.

Ritter, No. CIV-09-919-F, 2010 WL 4880890, at *2 (W.D. Okla. Oct. 8, 2010) (R. & R.),

adopted, 2010 WL 4880870 (W.D. Okla. Nov. 24, 2010).

III. Discussion

Because this action was removed on April 30, 2025, Plaintiff’s deadline to effect

service upon the defendants was July 29, 2025. See Fed. R. Civ. P. 4(m); 28 U.S.C. § 1448;

Wallace v. Microsoft Corp., 596 F.3d 703, 706-07 (10th Cir. 2010).

The Board argues that dismissal is warranted because the Board has still not been

properly served. See Def.’s Mot. to Dismiss at 3-8. More specifically, the Board argues

that District Attorney Behenna is not a member of and is not authorized to accept service

for the Board, as she has designated an assistant district attorney to sit on the Board in her

stead. See Def.’s Reply at 3; Okla. Stat. tit. 20, § 1204(b); see also id. tit. 12, § 182. The

Board also objects that the Oklahoma County District Attorney’s Office is not statutorily

authorized to represent the Board in this action. See Def.’s Mot. to Dismiss at 8.

Plaintiff responds that neither the membership of the Board nor the proper method

for serving the Board is widely available or clear from Oklahoma statute, although the

Board is a public entity. See Pl.’s Resp. at 2, 4 (“Even in its motion to dismiss, the Board

does not identify who or how to properly serve it.”). Plaintiff points out that the Board had

actual notice of the lawsuit, as Oklahoma County District Attorney’s Office advised the

Board months ago that it did not represent the Board and would not accept service, but

instead waited until Plaintiff’s service time had run to appear in this action. See id. at 3.

Plaintiff argues that she has substantially complied with service requirements but, if the

Court concludes otherwise, requests that she be given an extension of time to serve the

Board in lieu of dismissal. See id. at 3-4; see also Fed. R. Civ. P. 4(e)(1); Hukill v. Okla.

Native Am. Domestic Violence Coal., 542 F.3d 794, 798 (10th Cir. 2008).

Having considered the parties’ arguments, counsel’s representations, and the

relevant authorities, the Court finds that Plaintiff’s attempted service upon the Board was

insufficient and not in substantial compliance with Oklahoma requirements, as the Board

represents that District Attorney Behenna is not a current member. Given Plaintiff’s timely

attempt to serve the Board, however, as well as the Board’s actual notice of this lawsuit

and the lack of clarity as to how service may properly be achieved, the Court declines to

dismiss the relevant claims. Further, the Court concludes that Plaintiff has shown “good

cause for the failure” to timely serve the Board and is therefore entitled to an extension of

time to complete service. Fed. R. Civ. P. 4(m).

CONCLUSION

IT IS THEREFORE ORDERED:

1. The Motion to Dismiss (Doc. No. 13) filed by Defendant Board of Law Library

Trustees of Oklahoma County is DENIED;

2. Plaintiff's May 9, 2025 service attempt upon this Defendant is QUASHED; and

3. Plaintiff's request for an extension of the service deadline as to this Defendant is

GRANTED. Plaintiff shall complete service upon Defendant Board of Law Library

Trustees of Oklahoma County in compliance with Rule 4 of the Federal Rules of

Civil Procedure within thirty (30) days of the date of this Order.

IT IS SO ORDERED this 13th day of February, 2026.

CHARLES B. GOODWIN

United States District Judge