United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM & ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant TA Operating, LLC
d/b/a Travel Centers of America's motion to dismiss.
(Doc. No. 21). Plaintiffs oppose the motion. (Doc. Nos. 24,
26). For the reasons set forth below, the motion will be
granted, and the case will be dismissed without prejudice.
race discrimination and retaliation action was filed through
counsel on August 29, 2017. On February 1, 2018,
the Court directed Plaintiffs to show cause why the case
should not be dismissed for failure to properly serve
Defendant. (Doc. No. 3). Plaintiffs, through counsel,
responded that a material change of circumstances had
occurred and Plaintiffs intended to file an amended complaint
reflecting this change, which would then be served on
Defendant. (Doc. No. 4). The Court granted Plaintiffs leave
to file a first amended complaint, which was filed on
February 15, 2018. (Doc. No. 6).
February 27, 2018, Plaintiffs requested an extension of time
until April 4, 2018, to effectuate service on Defendant due
to Plaintiffs' counsel's medical condition and
hospitalization. (Doc. No. 7). Thereafter, the Court learned
that Plaintiffs' counsel had passed away.
3, 2018, the Court granted Plaintiffs 60 days to retain
counsel, if desired, and obtain service on Defendant on or
before September 3, 2018. (Doc. No. 10). On August 27, 2018,
Plaintiffs requested, and the Court denied, appointment of
counsel. (Doc. Nos. 11, 12). The Court specifically directed
Plaintiffs to obtain service on Defendant on or before
November 19, 2018.
December 13, 2018, attorney Benjamin Marble entered his
appearance on behalf of Defendant. (Doc. No. 14). Thereafter,
on January 3, 2019, Plaintiffs requested an alias summons,
which was issued by the Court. (Doc. No. 15). On January 8,
2019, Plaintiffs filed a proof of service of summons on
January 4, 2019. (Doc. No. 19).
January 29, 2019, Defendant filed the instant motion to
dismiss. Defendant first contends that Plaintiffs failed to
timely serve it with the lawsuit in violation of Federal Rule
of Civil Procedure 4(m), and that they fail to demonstrate
good cause or excusable neglect, thus necessitating dismissal
of the case. Defendant also maintains that Plaintiffs'
claims related to Title VII are untimely and should be
dismissed. Lastly, Defendants contend that the lawsuit should
be dismissed for improper venue because their claims arose
out of Plaintiffs' employment in Troy, Illinois.
responded that their untimely service on Defendants should be
excused due to extenuating circumstances, namely, the death
of their attorney. Plaintiffs maintain that after his death,
they struggled to find representation "due to the
original handling of the case" and had been in contact
with the Missouri Bar Association and the Client Recovery
Fund to recoup the monies already paid to counsel.
further response, Plaintiffs maintain that their Title VII
claims should not be dismissed because their claims had been
timely filed in Illinois. Specifically, Plaintiffs contend
that this employment discrimination case was timely filed in
federal court in Illinois on March 17, 2017, but then later
re-filed in Missouri because prior counsel "no longer
held a valid license to practice law" in that district.
Thus, their filing of the instant lawsuit on August 29, 2017,
should relate back to their prior pleading. Lastly,
Plaintiffs argue that venue is proper in this district
because Thomas Whittaker resides in this district, Defendant
has at least six locations in Missouri, and Plaintiffs
serviced trucks in both Illinois and Missouri.
Federal Rule of Civil Procedure 4(c)(1), "[t]he
plaintiff is responsible for having the summons and complaint
served within the time allowed by Rule 4(m)." Rule 4(m)
provides in relevant part:
(m) Time Limit for Service. If a defendant is not served
within 120 days after the complaint is filed, the court [on
motion of a defendant] 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.
plaintiff has demonstrated good cause for his failure to
serve within the prescribed 120-day period, the district
court must extend the time for service. Colasante v.
Wells FargoCorp.,81 Fed.Appx. 611, 612-13
(8th Cir. 2003) (citing Fed.R.Civ.P. 4(m)). If good cause is
not shown, the district court still retains the discretion to
grant an extension of time for service. Id.
(citation omitted). To warrant such a permissive extension, a
plaintiff must demonstrate excusable neglect. Id.
(citing Coleman v. Milwaukee Bd. of Sch. Dirs., 290
F.3d 932, 934 (7th ...