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Proctor v. Navka, LLC

United States District Court, S.D. Georgia, Savannah Division

April 20, 2015

ANTONIO PROCTOR, WANDA RIVERA, and MARISHA WHITE, Plaintiffs,
v.
NAVKA, LLC, NAVIKA CAPITAL GROUP, LLC, and NAVEEN C. SHAH, Defendants.

ORDER

B. AVANT EDENFIELD, District Judge.

A dinner party may be an appropriate place at which to arrive fashionably late, but no such fashion exists in the halls of justice. Plaintiffs bear a responsibility to promptly and fully notify those whom they sue, and they properly face consequences when they do not. They ought to "make use of time, let not advantage slip." See WILLIAM SHAKESPEARE, VENUS AND ADONIS, 1. 129.

Here, the Plaintiffs let advantage slip. As a result, their case faces dismissal.

I. BACKGROUND

Antonio Proctor, Wanda Rivera, and Marisha White ("the Plaintiffs")[1] filed suit against Navika Capital Group, LLC, Navka, LLC, and Naveen C. Shah ("the Defendants"), alleging that they are owed unpaid wages. ECF No. 1 at 1. They based their claim on the Fair Labor Standards Act ("FLSA").

The Plaintiffs filed suit on July 7, 2014. ECF No. 1. Although they had 120 days to serve all Defendants, see Fed.R.Civ.P. 4(m), the Plaintiffs failed to do so. Their time for serving the Defendants expired on November 4, 2014. At that point, the Plaintiffs' complaint could have been dismissed under Federal Rule of Civil Procedure 4(m).

But the Plaintiffs filed a Motion to Extend Time to Serve Defendants. ECF No. 7. This motion was untimely-it was filed on November 25, 2014, three weeks, after service was due. It also failed to establish good cause for the delay, arguing only that the Plaintiffs had been attempting to serve the Defendants but had not yet done so. See ECF No. 7-1 at 3. Nevertheless, the magistrate judge granted to the Plaintiffs an extension until January 2, 2015, to serve the Defendants. ECF No. 8.

Once again, the Plaintiffs failed to serve the Defendants by the deadline: not one defendant had been served by January 2, 2015.

II. MOTION TO DISMISS

A plaintiff must serve all defendants with a summons and a copy of the complaint. See Fed.R.Civ.P. 4(c)(1). But

[i]f a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-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.

Fed. R. Civ. P. 4(m).

That a plaintiff could not find a defendant is not, by itself, sufficient cause for an extension of time. In fact, "[g]ood cause exists only when some outside factor[, ] such as reliance on faulty advice, rather than inadvertence or negligence, prevented service." Lepone-Dempsey v. Carroll Cnty. Comm'rs, 476 F.3d 1277, 1281 (11th Cir. 2007) (alteration in original) (quotation marks omitted).

In the absence of good cause, the court must consider whether other circumstances warrant an extension of time. Id. at 1282. For example, the district court may grant an extension "if the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or conceals a defect in attempted service." Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1132-33 (11th Cir. 2005) (quotation omitted). However, "the running of the statute of limitations does not require that a district court extend the time for service of process" under Rule 4(m). Id. at 1133. "[A]bsent a finding of good cause, a district court may in its discretion still dismiss a case even after considering that the statute of limitations has run." In re ...


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