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Clark v. Sarpy County

United States District Court, D. Nebraska

June 15, 2018

ONSRI CLARK, Plaintiff,
SARPY COUNTY, Defendant.



         This matter comes before the Court on the Motion to Dismiss Complaint (Filing No. 10) and the Statement of Objections to Magistrate Judge's Order (Filing No. 14) filed by Defendant, Sarpy County. After consideration of the Defendant's arguments raised in both the Objection and the Motion to Dismiss, the undersigned will construe the Defendant's Objection as a motion to reconsider.[1] For the following reasons, the undersigned magistrate judge will grant Defendant's motion to reconsider, in part, and recommends that the motion to dismiss be granted, in part.


         This action arises out of Plaintiff's, Onsri Clark (“Plaintiff”), allegations that she developed an allergy in June 2015 while working as an evidence technician for Sarpy County (“Defendant”), and that Defendant subsequently discriminated against her on the basis of her disability or perceived disability, failed to reasonably accommodate her disability, and retaliated against her for asking for a reasonable accommodation and for making a workers' compensation claim. (Filing No. 1).

         Prior to filing this action, Plaintiff filed a charge of discrimination for disability, record of a disability, and retaliation discrimination with the Nebraska Equal Opportunity Commission (“NEOC”) and the Equal Employment Opportunity Commission (“EEOC”). (Filing No. 12-1 at pp. 2-4). On March 21, 2017, the NEOC issued its final determination of “no reasonable cause” and closed the charge. The NEOC letter notified Plaintiff that “[T]he deadline for filing an action directly in state district court is 90 days after receipt of this notice.” (Filing No. 12-1 at p. 2).

         On July 25, 2017, the EEOC issued and mailed to Plaintiff a “Dismissal and Notice of Rights” that adopted the NEOC's findings and closed the charge. (Filing No. 12-1 at p. 4). The EEOC dismissal also notified Plaintiff that the deadline for filing a lawsuit under federal law was 90-days from the date she received the EEOC notice.

         On October 23, 2017, Plaintiff filed her Complaint and jury demand against Defendant in this court, alleging violations under the Americans with Disabilities Act (“ADA”), the Nebraska Fair Employment Practices Act (“NFEPA”), and the public policy of the state of Nebraska. Plaintiff took no further action in the case, and on January 29, 2018, this Court entered an Order directing Plaintiff to show cause why the case should not be dismissed pursuant to Federal Rule of Civil Procedure 4(m) for failure to serve the defendant within 90-days after the Complaint was filed. (Filing No. 4).

         The next day, on January 30, 2018, Plaintiff requested Summons for “Sarpy County” using the address “1210 Golden Gate Drive, Papillion, NE 68046.” (Filing No. 5). On February 7, 2018, Plaintiff filed a “Proof of Service” and return receipt purporting to show that Defendant was served via Certified Mail on February 1, 2018. (Filing No. 7).

         On February 19, 2018, in response to the Court's show cause order, counsel for Plaintiff filed an Affidavit averring that Plaintiff's failure to serve Defendant within 90-days was based on her “good faith in the mistaken belief” that the deadline to complete service was 120-days, and Plaintiff's counsel's failure to supervise a paralegal that has since been terminated. Plaintiff's counsel further stated that he served summons within three days of the Court's issuance of the show cause order and that Defendant would not be prejudiced by the brief delay. (Filing No. 8 at p. 1).

         On February 22, 2018, the undersigned magistrate judge entered a Text Order stating that “Plaintiff has shown good cause for failure to complete service in 90-days . . . and the Defendant has now been served. Accordingly, the show cause deadline is terminated.” (Filing No. 9). On February 23, 2018, Defendant filed the instant Objection (construed by the undersigned as a motion to reconsider), arguing that Plaintiff did not make a showing of good cause and that Defendant was not properly served. (Filing No. 14). On February 22, 2018, Defendant filed the instant Motion to Dismiss, arguing that there was insufficiency of process and insufficiency of service of process. In the event the Court does not dismiss the Complaint in its entirety, Defendant argues that, at a minimum, Plaintiff's claims arising under the NFEPA must be dismissed for failure to file them within the applicable statute of limitations. (Filing No. 10).


         I. Motion to Reconsider

         On February 22, 2018, the undersigned magistrate judge found that Plaintiff had shown good cause for her failure to complete service in 90-days. Defendant objects to the magistrate judge's finding of good cause. In Plaintiff's brief, she does not attempt to argue good cause existed, but instead argues there was excusable neglect. (Filing No. 17 at p. 2). After consideration of Defendant's arguments, the undersigned magistrate judge agrees with Defendant, and grants Defendant's motion to that extent that it requests the Court reconsider its finding that good cause excused Plaintiff's failure to timely serve Defendant. However, the undersigned magistrate judge nevertheless finds excusable neglect existed to extend the service deadline.

         A plaintiff must serve the defendant within 90-days after the complaint is filed. Fed.R.Civ.P. 4(m). If the defendant is not served within 90-days, “the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice.” Id. However, “if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Id.“Under Rule 4(m), a district court must engage in a two-step analysis of motions to dismiss a complaint premised upon untimely service of process.” Colasante v. Wells Fargo Corp., 81 Fed.Appx. 611, 612 (8th Cir. 2003). First, “if the district court concludes there is good cause for plaintiff's failure to serve within [90] days, it shall extend the time for service.” Kurka v. Iowa Cty., Iowa, 628 F.3d 953, 957 (8th Cir. 2010). ‚ÄúSecond, if good cause is not shown, the district court still retains the ...

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