Linda B. Philpot v. Peach State Health Plan, Inc.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10387
Non-Argument Calendar
____________________
LINDA B. PHILPOT,
Plaintiff-Appellant,
versus
PEACH STATE HEALTH PLAN,
Defendant,
PEACH STATE HEALTH PLAN, INC.,
Defendant-Appellee.
____________________
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2 Opinion of the Court 22-10387
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-01760-TWT
____________________
Before N EWSOM , ANDERSON, and EDMONDSON, Circuit Judges.
PER CURIAM:
Plaintiff Linda Philpot, proceeding
pro se,1 appeals the dis-
trict court’s dismissal of Plaintiff’s
pro se civil action against her for-
mer employer, Peach State Health Plan, Inc. (“Peach State”). The
district court dismissed Plaintiff’s complaint for insufficient service
of process. Reversible error has been shown; we vacate the dismis-
sal and remand for further proceedings.
I.
Plaintiff filed
pro se this civil complaint in April 2020. Plain-
tiff asserted against Peach State claims for unlawful employment
discrimination: supposed violations of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-2, 3, and the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29 U.S.C. § 633. Peach State
later moved to dismiss Plaintiff’s complaint for insufficient service
of process.
1 We read liberally briefs filed by
pro se litigants.
See Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008). We also construe liberally
pro se pleadings.
See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
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22-10387 Opinion of the Court 3
A magistrate judge issued a report and recommendation
(“First R&R”), addressing Peach State’s motion. The magistrate
judge determined that Plaintiff failed to serve properly Peach State,
explaining that Plaintiff -- as a party to the action -- was not permit-
ted to serve process herself and that service by mail was not appro-
priate under the circumstances. The magistrate judge noted that
personal service must be made upon Peach State’s registered agent
and also identified the name and address for Peach State’s regis-
tered agent.
Concluding that Plaintiff’s attempts to serve Peach State
were deficient, the magistrate judge recommended that the district
court grant in part Peach State’s motion to dismiss. The magistrate
judge also recommended that the district court grant Plaintiff an
extension to effectuate proper service of process based on two fac-
tors: (1) Plaintiff’s
pro se status and (2) because “Plaintiff would
most certainly face timeliness issues if this case were dismissed and
she attempted to refile her claims.”
The district court adopted the First R&R, granted in part
Peach State’s motion to dismiss, and granted Plaintiff an additional
21 days to complete service of process.
Plaintiff filed timely two “Proof of Service” forms, showing
that a process server had served summons on two people: (1) Mr.
Turner, a mail room employee at Peach State’s offices, and (2) Mr.
Peterson, an attorney at the law firm representing Peach State in
this case. Peach State again moved to dismiss for insufficient ser-
vice of process.
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4 Opinion of the Court 22-10387
On 28 December 2021, the magistrate judge issued a second
R&R (“Second R&R”), recommending that the district court grant
Peach State’s motion to dismiss. The magistrate judge determined
that neither Mr. Turner nor Mr. Peterson were authorized to re-
ceive process on behalf of Peach State. The magistrate judge con-
cluded that Plaintiff failed to effectuate proper service despite the
magistrate judge’s earlier guidance -- in the First R&R -- about how
to do so. Because Plaintiff had failed to serve properly Peach State
after having been given a second chance, the magistrate judge said
Plaintiff had “not demonstrated why she should be given yet an-
other chance to do what she was required to do many months
ago.” The magistrate judge then advised that the parties had 14
days to file written objections, pursuant to 28 U.S.C. § 636(b)(1).
On 5 January 2022 -- before the expiration of the 14-day pe-
riod for filing objections -- the district court entered a one-para-
graph order granting Peach State’s motion to dismiss. The district
court said “no objections to the [Second R&R] have been filed” and
thus adopted without discussion the Second R&R as the judgment
of the court.
Meanwhile -- on 4 January and 5 January 2022 -- Plaintiff filed
timely objections to the Second R&R. Among other things, Plain-
tiff said she never received the First R&R.
After the district court issued its order of dismissal, Plaintiff
moved for a hearing on her objections to the Second R&R: objec-
tions Plaintiff said the district court never ruled on. The district
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22-10387 Opinion of the Court 5
court denied Plaintiff’s motion, concluding that Plaintiff’s filing of
a notice of appeal deprived the court of jurisdiction.
II.
We review for abuse of discretion a district court’s dismissal
of a complaint for failure to serve timely a defendant under Fed. R.
Civ. P. 4(m).
See Lepone-Dempsey v. Carroll Cty. Comm’rs, 476
F.3d 1277, 1280 (11th Cir. 2007). “A district court abuses its discre-
tion when its factual findings are clearly erroneous, when it follows
improper procedures, when it applies the incorrect legal standard,
or when it applies the law in an unreasonable or incorrect manner.”
Wreal, LLC v. Amazon.com, 840 F.3d 1244, 1247 (11th Cir. 2016).
Under Rule 4(m), “[i]f a defendant is not served within 90
days after the complaint is filed, the court . . . must dismiss the ac-
tion without prejudice against that defendant or order that service
be made within a specified time.” Fed. R. Civ. P. 4(m). If the plain-
tiff shows good cause for failing to effect timely service, the district
court “must extend the time for service.”
Id. “Good cause exists
only when some outside factor, such as reliance on faulty advice,
rather than inadvertence or negligence, prevented service.”
Lepone-Dempsey, 476 F.3d at 1281 (quotations and brackets omit-
ted).
Even absent a showing of good cause, the district court
maintains discretion under Rule 4(m) to extend the time for ser-
vice.
Id. at 1282. And we have said that, when a district court finds
a plaintiff has demonstrated no good cause under Rule 4(m), “the
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6 Opinion of the Court 22-10387
district court must still consider whether any other circumstances
warrant an extension of time based on the facts of the case.”
Id.
“Only after considering whether any such factors exist may the dis-
trict court exercise its discretion and either dismiss the case without
prejudice or direct that service be effected within a specified time.”
Id.;
see Bilal v. Geo Care, LLC, 981 F.3d 903, 919 (11th Cir. 2020)
(“[A] district court’s dismissal of a case under Rule 4(m) after find-
ing that the plaintiff did not demonstrate good cause but before
considering whether the facts of the case justify a permissive exten-
sion of the service period is ‘premature.’”). Circumstances that
might warrant an extension of time include when the statute of
limitations would prevent refiling or when the defendant evades
service.
Lepone-Dempsey, 476 F.3d at 1282.
Here, the district court abused its discretion in dismissing
Plaintiff’s complaint before the expiration of the 14-day period to
file objections and without considering Plaintiff’s objections.
See
28 U.S.C. § 636(b)(1) (providing that a party has 14 days to file ob-
jections to a magistrate judge’s R&R and that the district court
“shall make a
de novo determination” about the portions of the
R&R to which a party has objected); Fed. R. Civ. P. 72(b)(2), (3)
(same). Despite the district court’s error, Peach State urges us to
affirm the district court’s dismissal on grounds that the error was
harmless. We disagree.
We accept the magistrate judge’s conclusion that Plaintiff
failed to serve properly Peach State. In the Second R&R, the mag-
istrate judge then concluded that no good cause existed based on
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22-10387 Opinion of the Court 7
Plaintiff’s failure to follow the guidance set forth in the First R&R.
The district court adopted the Second R&R without considering
Plaintiff’s contention -- made in her timely-filed objections -- that
she never received the First R&R. Because Plaintiff’s allegation
mitigates to some degree the magistrate judge’s chief reason for
recommending that Plaintiff not be granted a second extension of
time, we cannot conclude that the district court’s failure to con-
sider Plaintiff’s objections was harmless.
Moreover, the district court also erred in failing to show that
it considered whether other circumstances might exist that would
warrant a permissive extension of time to serve Peach State. Of
particular concern, we note that -- when the district court issued its
dismissal order in January 2022 -- the record made apparent that
the applicable statute-of-limitations for Plaintiff’s claims had al-
ready run.2 Although the district court is not required to grant an
extension even if it concludes that Plaintiff is now barred from re-
filing her claims, “it was incumbent upon the district court to at
2 The complained-of discrimination occurred in May 2018 and the Equal Em-
ployment Opportunity Commission (“EEOC”) issued Plaintiff a right-to-sue
notice in February 2020. Under the applicable statute-of-limitations, Plaintiff
had 90 days from the issuance of the right-to-sue notice to file this civil action.
See 29 U.S.C. § 626(e); 42 U.S.C. § 2000e- 5(f)(1);
Santini v. Cleveland Clinic,
232 F.3d 823, 825 (11th Cir. 2000) (“Title VII and ADEA actions may not be
brought more than 90 days after a complainant has adequate notice that the
EEOC has dismissed the Charge.”). Plaintiff’s time for filing this civil action
apparently expired well before the district court’s January 2022 order of dis-
missal.
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8 Opinion of the Court 22-10387
least consider this factor.”
See Lepone-Dempsey, 476 F.3d at 1282
(reversing the district court’s dismissal for failure to effect timely
service when the district court failed to consider that the statute-of-
limitations had already expired).
We vacate the district court’s order of dismissal and remand
for the district court to consider these things: (1) Plaintiff’s objec-
tions to the Second R&R; (2) whether -- in the light of Plaintiff’s
objections -- good cause existed to excuse Plaintiff’s failure to effect
proper service; and (3) if no good cause existed, whether other cir-
cumstances (including the running of the applicable statutes of lim-
itation) would warrant a permissive extension of time to serve
Peach State.
VACATED AND REMANDED.
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