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Whittaker v. Ta Operating LLC

United States District Court, E.D. Missouri, Eastern Division

September 16, 2019

THOMAS WH1TTAKER and TIMOTHY WH1TTAKER, Plaintiffs,
v.
TA OPERATING, LLC d/b/a TRAVEL CENTERS OF AMERICA, Defendant.

          MEMORANDUM & ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE

         This 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.

         I. Background

         This race discrimination and retaliation action was filed through counsel[1] 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).

         On 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.

         On July 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.

         On 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).

         On 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.

         Plaintiffs 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.

         In 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.

         II. Discussion

         Under 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.

         If a 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 ...


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