Kamara v. Univ. Of Md.

ISHA KAMARA, Plaintiff, v. UNIVERSITY OF MARYLAND, Defendant.

CIVIL No. GLS-20-3037

United States District Court, D. Maryland, Southern Division

May 9, 2022

MEMORANDUM OPINION

Honorable Gina L. Simms United States Magistrate Judge

Pending before this Court is the Motion to Dismiss, (ECF No. 32) filed by Defendant University of Maryland. The issue has been fully briefed. (ECF Nos. 34, 35, 38). Upon review of the pleadings and the record, the Court finds that no hearing is necessary. See L.R. 105.6. For the reasons set forth below, Defendant's Motion to Dismiss is GRANTED.

I. BACKGROUND

On October 19, 2020, Plaintiff filed her Complaint, asserting that a “sexually hostile environment” existed at the University of Maryland that was non-responsive to her following an alleged sexual assault, in violation of Title IX, 42 U.S.C. §2000d-7. (ECF No. 1). The Clerk's Office issued summons on October 29, 2020. (ECF No. 6). On June 7, 2021, a case management conference was held before the district judge formerly assigned to this case. During the conference, Plaintiff was granted leave to file an amended complaint, and Defendant preserved its objection to said filing on the basis of failure to timely effect service. (ECF No. 11). On August 31, 2021, an Amended Complaint complying with the Local Rules^[1] was filed, alleging: (1) an “unlawful hostile environment” in violation of Title IX, 42 U.S.C. §2000d-7; (2) negligent failure to investigate the sexual assault in violation of Maryland law; and (3) negligent failure to properly hire, train, and supervise staff in violation of Maryland law. (ECF No. 24).

As a preliminary matter, Plaintiff concedes that the Complaint was not timely served upon Defendant within the ninety days required per Fed.R.Civ.P. 4(m). (ECF Nos. 25, 28, 34-1). The sole issue before this Court, then, is whether there are sufficient facts present such that the Court should grant Plaintiff's request to extend the time by which service of process was required to be made.

Accepting the facts as Plaintiff's counsel represents them, ^[2] on April 12, 2021, Plaintiff served Defendant with the Complaint using Defendant's service email address. (ECF Nos. 32-1, 34, 35-2). As to the events that occurred between the filing of the Complaint and the service of the Complaint, the timeline is not entirely clear. Plaintiff's counsel represents that at some point he attempted to hire a private process server, “which became futile, ” due to the campus of the University of Maryland in College Park, Maryland, being closed due to the COVID-19 pandemic. (ECF No. 32-1, p. 1).^[3] In addition, during a November 24, 2021 status hearing, Plaintiff's counsel represented that he had heard anecdotally that the Office of the Attorney General (“OAG”) building was either closed or short-staffed. (ECF No. 37).^[4]

Plaintiff's counsel further represented that during the ninety days after the Complaint was filed, he contracted COVID-19, and was “testing positive” for about ten days at the end of December 2020 and into the first or second week of January 2021. (ECF Nos. 34-1, 37). Plaintiff's counsel stated that he contacted the Clerk's Office for the District Court of the District of Maryland after he recovered from his illness, and after the ninety days had passed, to ask if he needed to have the summons reissued. (ECF No. 37).^[5] Plaintiff's counsel represented that at that time he also asked the Clerk's Office if he “needed to refile, ” or if there was an issue “regarding potential failure to prosecute” pursuant to Local Rule 103.8 (D. Md. 2021). According to Plaintiff's counsel, when he checked the docket in this case, he saw no issue regarding lack of service at that time. (Id.). Plaintiff's counsel appears to have believed at this time that he did not need to effect service within the ninety days set by Rule 4(m) because: (1) the summons did not have an expiration date such that he needed to ask to reissue them; and (2) no show cause order was entered at the end of the ninety-day window. (Id.).

Plaintiff's counsel also represented that sometime after this conversation with a representative of the Clerk's Office, he reached out to the OAG to ask how to serve the Complaint. (Id.). According to him, someone from the OAG replied, providing him with the email address he should use to serve the Complaint. (Id.). Counsel represented that within thirty days of receiving the email address, he sent the Complaint and the Waiver of Service of Summons form to the OAG. (Id.). In her Opposition to the Motion to Dismiss, Plaintiff notes, without further clarification that counsel was only able to obtain the service email for Defendant “after the University of Maryland entered [P]hase I” on April 5, 2021. (ECF No. 34-1, p. 2). Plaintiff appended the University's apparent phased plan for in-person activities on campus. (ECF No. 34-3).

On April 12, 2021, Plaintiff sent an email with the Complaint and a Waiver of Summons form. (ECF No. 34-1, p. 2). Defendant did not return the waiver of service of summon form, and Plaintiff, to date, has not served the summons on Defendant. (Id.).

II. STANDARD OF REVIEW

Under Fed.R.Civ.P. 12(b)(5), a defendant may assert that dismissal of a complaint must occur if service of process has not been sufficient. Then, “[o]nce service has been contested, the plaintiff bears the burden of establishing the validity of service pursuant to [Federal Rule of Civil Procedure] Rule 4.” Johnson v. Azar, Civ. No. GJH-20-2091, 2022 WL 874936, at *3 (D. Md. Mar. 24, 2022) (quoting O'Meara v. Waters, 464 F.Supp.2d 474, 476 (D. Md. 2006)). Even if a defendant has actual notice of the action, the rules of service “are there to be followed, and plain requirements for the means of effective service of process may not be ignored.” Jackson v. Warning, Civ. No. PJM-15-1233, 2016 WL 520947, at *2 (D. Md. Feb. 5, 2016) (quoting Armco, Inc. v. Penrod-Slauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984)); see also Lehner v. CVS Pharmacy, Civ. No. RWT-08-1170, 2010 WL 610755, at *3 (D. Md. Feb. 17, 2010) (“this Court will not make a mockery of the time requirements set forth in the Federal Rules of Civil Procedure”).

III. ANALYSIS

Defendant argues that the Amended Complaint, (ECF No. 24), should be dismissed because: (1) Plaintiff failed to timely serve the original Complaint; (2) Plaintiff cannot show good cause for her failure to timely serve the Complaint; and (3) even if the Court has the discretion to extend the time for service absent good cause, there is no reasoned basis to do so here. (ECF No. 32, pp. 3-7). Defendant further argues with regard to good cause that Plaintiff “cannot plausibly argue that effecting service on the University was not possible or even difficult, as she could have effectuated service by email to a dedicated service email address.” (ECF No. 32-1, p. 4).

Plaintiff acknowledges that the Complaint was not served within ninety days of its filing, but counters that: (1) good cause for her failure exists due to the COVID-10 pandemic, among other reasons; and (2) even if the Court finds no good cause exists, the Court has the discretion to extend the time for service under Rule 4(m). (ECF No. 34-1, p. 2).

Federal Rule of Civil Procedure 4(m) provides the following:

“If a defendant is not served within [ninety] 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. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.”

Fed. R. Civ. P. 4(m).

Rule 4(m) requires a plaintiff to serve a defendant within ninety days after her complaint is filed. In addition, if a plaintiff shows “good cause” for her failure to serve the complaint in a timely manner, then the Court “must extend the time for service for an appropriate period.” Fed.R.Civ.P. 4(m).

What constitutes “good cause” for the purposes of Rule 4(m) “necessarily is determined on a case-by-case basis” and is determined “within the discretion” of the Court. Collins v. Thornton, 782 Fed.Appx. 264, 267 (4th Cir. 2019) (quoting Scott v. Md. State Dep't of Labor, 673 Fed.Appx. 299, 306 (4th Cir. 2016)). Courts have identified factors that may-but need not be- considered to assess whether good cause warrants an extension of time for service, including whether: “(1) the delay in service was outside the plaintiff's control; (2) the defendant was evasive; (3) the plaintiff acted diligently or made reasonable efforts; (4) the plaintiff is pro se or in forma pauperis; (5) the defendant will be prejudiced; or (6) the plaintiff asked for an extension of time under Rule 6(b)(1)(A).” Scott, 673 Fed.Appx. at 306 (citing, inter alia, Kurka v. Iowa Cty., Iowa, 628 F.3d 953, 957 (8th Cir. 2010)); see also Collins, 782 Fed.Appx. at 267 (holding no abuse of discretion, where lower court found no good cause without analyzing factors set forth above).

In this case, Plaintiff filed her Complaint on October 19, 2020. (ECF No. 1). Per Rule 4(m), she was required to serve Defendant by January 17, 2021. Plaintiff emailed the Complaint and a Waiver of Summons form to the Defendant's service email address on April 12, 2021. (ECF Nos. 34, 35-2). During the life of this case, counsel has made several representations as to why Plaintiff has good cause for not serving the Complaint within the ninety day time period, some of which seem to be inconsistent with each other.^[6] The Court categorizes the most recent representations as follows: (1) the COVID-19 pandemic caused the University of Maryland campus to shut down in-person operations and counsel was not...