Palzer v. Cox Oklahoma Telecom, LLC, 671 F. App'x 1026

Background

Palzer filed an employment-discrimination petition in Oklahoma state court after receiving an EEOC right-to-sue letter; his state-court lawyer, N. Kay Bridger‑Riley, suffered serious injuries and failed to timely effect service.
Bridger‑Riley had resigned her admission to the Northern District of Oklahoma bar and listed former colleague Christopher Camp as contingency counsel if the case were removed.
The state court issued a disposition docket notice warning of dismissal unless counsel showed cause; Camp received and forwarded the notice to Bridger‑Riley, who then mailed the summons; Camp appeared at the hearing and the state court granted Palzer 30 more days to effect service. Cox was served on September 14.
Cox removed to federal court and moved to dismiss under Rule 12(b)(5) for failure to timely serve summons under Okla. Stat. tit. 12, § 2004(I).
The district court rejected Palzer’s reliance on the state-court disposition, required Palzer to brief good cause, and dismissed the case (citing no authority) because Camp could have effectuated service and Palzer did not explain why he did not.
The Tenth Circuit reversed, holding the district court abused its discretion, directed the district court to allow Palzer 90 days to cure service under 28 U.S.C. § 1448 and Fed. R. Civ. P. 4(m).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Palzer showed "good cause" under Okla. Stat. tit. 12, § 2004(I) for failure to serve within 180 days	Palzer argued counsel’s serious medical condition excused the delay and state court granted extra time at the disposition hearing	Cox argued service was untimely and dismissal was proper because another attorney (Camp) was available to serve	Court found district court abused discretion by rejecting state-court allowance and failing to credit excusing circumstances; state-court action weighed against dismissal
Whether removal to federal court required permitting Palzer to cure defective/imperfect service under 28 U.S.C. § 1448 and Fed. R. Civ. P. 4(m)	Palzer argued that even if state-law good-cause was insufficient, federal law gives him 90 days after removal to cure service	Cox argued dismissal in federal court was proper because service was defective and good cause lacking before removal	Court held that Rule 4(m)/§ 1448 entitles Palzer to 90 days post-removal to effect service and that district court should have allowed that opportunity
Whether the district court properly disregarded the state court’s September 10 disposition ruling	Palzer argued the state-court extension demonstrated good cause and equity favored honoring that decision	Cox argued federal court may revisit and dissolve state-court orders after removal	Court held district court improperly disregarded state-court decision without analysis and equity; deference to district court limited where no credibility findings were needed
Whether dismissal was an abuse of discretion	Palzer argued dismissal (with no citation) ignored precedent and equitable considerations	Cox defended dismissal based on untimeliness and availability of counsel to serve	Court concluded dismissal was an abuse of discretion and remanded with instructions to allow cure period

Key Cases Cited

Constien v. United States, 628 F.3d 1207 (10th Cir. 2010) (standard of review for service dismissals; Rule 4(m) guidance)
Phelps v. Hamilton, 122 F.3d 1309 (10th Cir. 1997) (abuse of discretion standard explained)
Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324 (10th Cir. 1996) (deference and credibility assessment discussion)
Rogers v. Andrus Transp. Servs., 502 F.3d 1147 (10th Cir. 2007) (description of sound discretion and equitable decisionmaking)
Wallace v. Microsoft Corp., 596 F.3d 703 (10th Cir. 2010) (effect of removal on service rules and Rule 4(m) application)
Granny Goose Foods, Inc. v. Bd. of Teamsters, 415 U.S. 423 (1974) (federal court may dissolve or alter state-court orders after removal)
Hanna v. Plumer, 380 U.S. 460 (1965) (discouraging forum-shopping; Erie principles)