Normali v. Seminole County Board of County Commissioners et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
SHAWNA NORMALI, 	)
as personal representative of THE 	)
ESTATE OF LENA CORONA, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. 24-CV-257-JFH-GLJ
)
BOARD OF COUNTY 	)
COMMISSIONERS FOR 	)
SEMINOLE COUNTY, et al., 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
Before the Court is Defendant Turn Key Health Clinics, LLC’s Motion to Dismiss
Rachael Smith [Docket No. 133]. 	On September 6, 2024, the Court referred this case to
the 	undersigned 	Magistrate 	Judge 	for 	all 	further 	proceedings 	in 	accordance 	with
jurisdiction pursuant to 28 U.S.C. § 636 [Docket No. 47]. 	For the reasons stated below,
Defendant Turn Key Health Clinics, LLC’s Motion to Dismiss Rachael Smith [Docket No.
133] should be GRANTED.
Background
On July 22, 2024, Plaintiff Shawna Normali, as personal representative of the estate
of Lena Corona, brought this action asserting various claims pursuant to 42 U.S.C. § 1983
for wrongful death and the Oklahoma Open Records Act. 	See Docket No. 2. 	Plaintiff’s
claims arise out of Lena Corona’s July 10, 2023 arrest and incarceration in the Seminole
County Jail and subsequent suicide on July 15, 2023. On December 9, 2024, Plaintiff filed
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her Amended Complaint, which added claims for personal injury and negligence against
existing defendants and a negligence claim against Racheal Smith, LPN, who was
employed by Turn Key. 	See Docket No. 68. 	During a hearing on various motions to
compel by Plaintiff, Turn Key orally moved to dismiss Racheal Smith for failure to timely
serve her with summons and a copy of the Amended Complaint. See Docket No. 133.
Analysis
Federal Rules of Civil Procedure Rule 4(m) states that “[i]f a defendant is not served
within 90 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.” 	Fed. R. Civ. P. 4(m). 	Moreover, “if the
plaintiff shows good cause” for failing to timely effect service, “the court must extend the
time for service for an appropriate period.” Id. Even if Plaintiff is unable to demonstrate
good cause, “the district court must still consider whether a permissive extension of time
may be warranted. At that point the district court may in its discretion either dismiss the
case without prejudice or extend the time for service.” Espinoza v. United States, 52 F.3d
838, 841 (10th Cir. 1995).
A. Good Cause
At the January 13, 2025 hearing, Plaintniff’s counsel admitted he was surprised to
recently learn that Racheal Smith had not been served. A review of the docket, however,
indicates that although Ms. Smith was added as a defendant in the December 9, 2024
Amended Complaint, no summons was ever issued for her and no return of service was
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ever filed. 	See Docket.1 	As such, it is apparent that no attempted service of Ms. Smith
was ever made.
The “good cause” provision “should be read narrowly to protect only those plaintiffs
who have been meticulous in their efforts to comply with the Rule.” Despain v. Salt Lake
Area Metro Gang Unit, 13 F.3d 1436, 1438 (10th Cir. 1994). “’[I]nadvertence or
negligence alone do not constitute ‘good cause’ for failure of timely service.’” 	In re
Kirkland, 86 F.3d 172, 176 (10th Cir. 1996) (quoting Cox v. Sandia Corp., 941 F.2d 1124,
1125 (10th Cir. 1991)). “Mistake of counsel or ignorance of the rules also usually do not
suffice.” 	Id. (citing Putnam v. Morris, 833 F.2d 903, 905 (10th Cir. 1987); Despain, 13
F.3d at 1439). “[A]bsence of prejudice to the defendants, by itself, does not equate to good
cause on the part of the plaintiff[ ].” 	Despain, 13 F.3d at 1439 (citing In re City of
Philadelphia Litig., 123 F.R.D. 512, 514 (E.D. Pa. Dec. 28, 1988)). 	“The fact that the
statute of limitations has run . . . does not demonstrate good cause.” Id. See also Gumm v.
Fed. Bureau of Prisons, 2007 WL 3312785, at *3 (W.D. Okla. Nov. 6, 2007). 	“While
unable to articulate an explicit rule for determining a good cause exception, the Tenth
Circuit has suggested that a lawyer should ‘treat the [90] days with the respect reserved for
a time bomb.’” Enberg v. The Atchison Topeka and Santa Fe R.R. Co., 1992 WL 403052,
at *1 (D. Ks. Dec. 15, 1992) (quoting Cox, 941 F.2d at 1126).
1 The Court may take judicial notice of both its own docket sheets and other state or federal court
docket sheets. 	United States v. Ahidley, 486 F.3d 1184,1192, n. 5 (10th Cir. 2007) (“We may
exercise our discretion to take judicial notice of publicly-filed records in our court and certain other
courts concerning matters that bear directly upon the disposition of the case at hand.”).
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The undersigned Magistrate Judge concludes that Plaintiff has not shown good
cause for her failure to effect service of the Amended Complaint and summons on Ms.
Smith. 	This is not a matter of a failed attempt to serve, defective service or even late
service. 	Rather, no summons was ever issued much less any attempt made to serve Ms.
Smith. Moreover, Plaintiff’s counsel did not even recognize the failure to serve for more
than a year after the Amended Complaint was filed and Ms. Smith was added as a
defendant. At the January 13, 2025 hearing, Plaintiff’s counsel offered no explanation or
excuse that could constitute good cause for this failure.
B. Permissive Extension
Nonetheless, the undersigned Magistrate Judge must further consider whether a
permissive extension of time may be warranted. 	Espinoza, 52 F.3d at 842 & n.8. 	The
Tenth Circuit identifies several factors to guide district courts in determining whether to
grant a permissive extension: (i) “if the applicable statute of limitations would bar the
refiled action”; (ii) whether “the plaintiff has tried, but failed, to effect service upon the
United States”; and (iii) “protect[ing] pro se plaintiffs from consequences of confusion or
delay attending the resolution of an in forma pauperis petition.” 	Id. 	Additionally, an
extension may be appropriate where the defendant has not been prejudiced. See Spiess v.
Meyers, 483 F. Supp. 2d 1082, 1097 (D. Kan. 2007).
The only factor potentially implicated is the first one, whether the statute of
limitations would bar a refiled action against Ms. Smith. 	It appears possible, indeed
perhaps likely, that a dismissal of Ms. Smith would result in the statute of limitations baring
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refiling of this case against her.2 While a potential bar based on the statute of limitations
would ordinarily weigh in Plaintiff’s favor, the failure of Plaintiff to even attempt service
on Ms. Smith for over a year weighs against granting a permissive extension. “Although
a statute of limitations problem may justify relief under Rule 4(m), that factor alone is not
determinative and does not make dismissal inappropriate.” In re Langston, 319 B.R. 667,
670 (D. Utah 2005) (citing Advisory Committee Note to Fed. R. Civ. P. 4(m)). 	See also
Cloyd v. Arthur Anderson & Co., Inc., 25 F.3d 1056, 1994 WL 242184, at *2 (10th Cir.
1993) (unpublished table opinion) (“That a plaintiff’s claims will be time-barred if an
action is dismissed for failure to effect service within [90] days does not mandate an
extension of time under new Rule 4(m).”); Valdez v. Chuwanti, 2022 WL 17093445, at *3
(D.N.M. Nov. 21, 2022) (“[T]he mere possibility of a statute of limitations bar does not
establish good cause for failure to timely serve and does not preclude the Court from
exercising its discretion to dismiss a case.”). 	Moreover, granting a permissive extension
would substantially prejudice the defendants. This case has been extensively litigated for
over a year and a half, including substantial pleadings practice and discovery. 	If the time
to serve Ms. Smith is extended, there will likely be substantial delays, first in locating and
serving Ms. Smith and, second, the likely pleadings practice to follow that will further
delay the proceedings and prejudice the current defendants.
2 The incident giving rise to the claims occurred on July 15, 2023 and Oklahoma’s statute of
limitations for negligence is two years. See 12 O.S. § 95.
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C. Interest of Justice
When dismissal without prejudice is the “equivalent to dismissal with prejudice due
to the statute of limitations,” the court must ask “whether dismissal ‘would satisfy the
interest of justice’” by analyzing:
(1) the degree of actual prejudice to the defendant; (2) the amount of
interference with the judicial process; (3) the culpability of the litigant; (4)
whether the court warned the party in advance [ ] that dismissal of the action
would be a likely sanction for noncompliance; and (5) the efficacy of lesser
sanctions.
Wagoner v. Towne, 2019 WL 1283487, at *2 (W.D. Okla. Mar. 20, 2019) (quoting Davis
v. Miller, 571 F.3d 1058, 1060-61, n.2 (10th Cir. 2009)).
As previously noted, Defendants will be substantially prejudiced by an extension to
serve Ms. Smith. Plaintiff had ample opportunity to have summons issued and serve Ms.
Smith but failed to take any action for over a year. In contrast, dismissing Ms. Smith will
not substantially prejudice Plaintiff. 	Ms. Smith worked for Turn Key during the alleged
incident and Turn Key will likely have respondeat superior liability for any alleged
negligence of Ms. Smith. 	Second, permissive extension will significantly delay the
litigation, which has been ongoing for over a year and a half. 	Third, Plaintiff and her
counsel are fully responsible for failing to serve Ms. Smith. 	See Ocelot Oil Corp. v.
Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988)) (“‘[W]e have upheld dismissals . .
. where the parties themselves neglected their cases.’”). Fourth, although Plaintiff was not
put on notice of the failure to service until recently, it was her own error, and the Court is
not obligated to monitor compliance with service to ensure Plaintiff fulfills her obligations.
See Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1150 (10th Cir.
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2007)) (“[I]t is not necessary that . . . notice be given pursuant to the specific behavior that
later forms the basis for dismissal.”). 	The fifth factor, efficacy of lesser sanctions, also
favors dismissal. While the undersigned Magistrate Judge recognizes Plaintiff’s failure to
serve Ms. Smith was likely an oversight and was not done intentionally or to disrupt the
proceedings, there is no meaningful lesser sanction available and giving Plaintiff additional
time to serve Ms. Smith will significantly disrupt and delay the proceedings given the status
of the case.
Dismissal is appropriate “‘[o]nly when the aggravating factors outweigh the judicial
system’s strong predisposition to resolve cases on their merits.’” Davis, 571 F.3d at 1061
(quoting Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992)). Given that four of
the five factors weigh in favor of denying a permissive extension to serve Ms. Smith, the
undersigned Magistrate Judge concludes that the interest of justice weighs in favor of
dismissing Ms. Smith.
Conclusion
Accordingly, the undersigned Magistrate Judge hereby RECOMMENDS that
Defendant Turn Key Health Clinics, LLC’s Motion to Dismiss Rachael Smith [Docket No.
133] should be GRANTED and Defendant Racheal Smith be dismissed without prejudice.
Any objections to this Report and Recommendation must be filed within fourteen
days. See 18 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Any objection and response shall
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each be limited to 10 pages and a reply is permitted only with leave of court upon a showing
of good cause.
IT IS SO ORDERED this 15th day of January 2026.
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE
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