Fisher v. Russell Stover Chocolates, LLC
5:19-cv-04075
D. Kan.Apr 10, 2020Background
- Pro se plaintiff Herbert DeVan Fisher, Jr. filed an employment-discrimination complaint against Russell Stover Chocolates, LLC on September 6, 2019.
- Fisher moved to proceed in forma pauperis; that motion was denied on September 23, 2019, and Fisher paid the filing fee on September 26, 2019.
- Fisher did not request issuance of a summons or effect service on the defendant within the 90-day period required by Fed. R. Civ. P. 4(m).
- The court granted a permissive extension on December 26, 2019 and directed Fisher to serve the defendant by February 14, 2020, warning that failure to do so could result in dismissal under Rule 4(m).
- Fisher failed to serve the defendant and did not respond to the court’s February 20, 2020 order to show cause; the court mailed and e-filed its orders and presumes Fisher received them.
- The magistrate judge recommended dismissal without prejudice under Fed. R. Civ. P. 4(m) and/or Fed. R. Civ. P. 41(b) for failure to timely serve, comply with court orders, and prosecute the case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to serve within 90 days requires dismissal under Rule 4(m) | No defense presented; Fisher did not serve or explain delay | No participation; not served | Court: Dismissal without prejudice is required under Rule 4(m) |
| Whether dismissal under Rule 41(b) is appropriate for failure to prosecute and comply with court orders | No response to show-cause or court orders | No participation; not served | Court: Dismissal without prejudice is permissible in its discretion under Rule 41(b) |
Key Cases Cited
- Ogden v. San Juan Cty., 32 F.3d 452 (10th Cir. 1994) (pro se status does not excuse compliance with procedural rules)
- Espinoza v. United States, 52 F.3d 838 (10th Cir. 1995) (permissive extensions may protect pro se litigants from consequences attending IFP delays)
- AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233 (10th Cir. 2009) (Rule 41(b) dismissal for failure to prosecute reviewed for abuse of discretion)
- Rogers v. Andrus Transp. Servs., 502 F.3d 1147 (10th Cir. 2007) (district court has discretion to dismiss for failure to prosecute)
- In re Key Energy Res. Inc., 230 F.3d 1197 (10th Cir. 2000) (failure to file objections limits appellate review)
- Moya v. United States, 35 F.3d 501 (10th Cir. 1994) (presumption of delivery for properly addressed mail)