Stephenson v. Chao

KELLY STEPHENSON, Plaintiff, v. ELAINE CHAO, Defendant.

Civil Action No. 19-2256 (TJK)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

January 10, 2020

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff Kelly Stephenson's Motion for Reconsideration of the Court's order dismissing this case for failure to effectuate service. He appears to blame a clerical error for his failure. Invoking Federal Rule of Civil Procedure 60(b), he argues that he should be allowed more time to effectuate service, despite the additional time, instructions, and warning the Court already provided him. For the reasons discussed below, the Court disagrees and will exercise its discretion to deny the motion.

I. Background

Stephenson brought this action in July 2019, alleging that he had been unlawfully discriminated against due to his age and disability. See ECF No. 1 ("Compl."). He named a single defendant, Elaine Chao, who was "being sued here in her official capacity only." Id. at ¶ 7. In such cases, Federal Rule of Civil Procedure 4(i)(2) governs service. That rule instructs that when suing a United States officer or employee in their official capacity, a plaintiff must send a copy of the summons and the complaint by registered or certified mail to the defendant and serve the United States in accordance with Rule 4(i)(1). Fed. R. Civ P. 4(i)(2). Rule 4(i)(1) explains that to serve the United States, a plaintiff must appropriately serve the United States attorney for the district where the action is brought and the Attorney General of the United States. A plaintiff must complete these steps within 90 days of filing her complaint. Fed. R. Civ. P. 4(m).¹ If a plaintiff fails to do so—absent a showing of good cause—a court "must dismiss the action without prejudice against that defendant or order that service be made within a specified time." Id.

Here, Stephenson filed his complaint on July 29, 2019. See Compl. As a result, he had until October 27, 2019 to effectuate service. See Fed R. Civ. P. 4(m). But, by that time, the only service-related step he had taken was to request (and receive) a summons as to Chao. See ECF Nos. 2, 3. For that reason, on November 20—nearly a month after the service deadline had passed—the Court advised Stephenson of his obligation to effectuate service on the United States Attorney and the Attorney General and ordered him to do so. See Minute Order of November 20, 2019. Stephenson had neither sought an extension nor provided any good cause for his failure to effectuate service at that time. Still, the Court gave him until December 4, 2019—two additional weeks—to file proof of service. See id. The Court warned him that failure to do so could lead to the dismissal of his case without prejudice. See id.

On December 3, Stephenson filed an affidavit affirming that service had been made on Chao via certified mail. See ECF No. 4.² However, he did not represent that he so much as tried to serve the United States Attorney or the Attorney General, as the Court had ordered. See id.He also did not explain his failure to do so, nor did he request an extension of time. As a result, under Rule 4(m), the Court dismissed the complaint without prejudice. See Minute Order of December 5, 2019.

Stephenson now moves for reconsideration. See ECF No. 5 ("Mot."). He asks the Court to vacate its previous order dismissing the complaint without prejudice and to allow him an additional 60 days to effectuate service. Id. at 1.

II. Legal Standard

"A motion to reconsider a final order is generally treated as a Rule 59(e) motion if it is filed within the filing time limit set forth in that rule—as [Stephenson's] was—and as a Rule 60(b) motion if it is filed thereafter." Roane v. Gonzales, 832 F. Supp. 2d 61, 64 (D.D.C. 2011). Even so, Stephenson explicitly invokes only Rule 60(b). See Mot. at 1, 3. Accordingly, the Court will consider his motion under both rules. Under either, a movant must clear a high bar and a district court has considerable discretion in deciding whether to grant relief. See Piper v. U.S. Dep't of Justice, 312 F. Supp. 2d 17, 20 (D.D.C. 2004) (discussing Rule 59(e)); Avila v. Dailey, 404 F. Supp. 3d 15, 21 (D.D.C. 2019)) (discussing Rule 60(b)).

"Under Federal Rule of Civil Procedure 59(e), a motion to reconsider 'is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Trudel v. SunTrust Bank, 924 F.3d 1281, 1287 (D.C. Cir. 2019) (quotation omitted). It is not a vehicle "to bring before the Court theories or arguments that could have been advanced earlier." Lightfoot v. D.C., 355 F. Supp. 2d 414, 421 (D.D.C. 2005) (quotation omitted).

"Whether a party should be granted relief under Rule 60(b) is a matter left to the district court's discretion." Mazengo v. Mzengi, 542 F. Supp. 2d 96, 98 (D.D.C. 2008). Rule 60(b)provides six grounds for granting relief from a final judgment. Most of the six involve an intervening action or conduct that occurred after the court entered judgment. See Fed. R. Civ. P. 60(b). Although Stephenson does not explicitly say so, see Mot. at 1, 3-4, only the first ground for relief could be relevant here. Rule 60(b)(1) allows for relief due to "mistake, inadvertence, surprise, or excusable neglect."³ The Supreme Court has articulated four factors for courts to consider when determining whether neglect is excusable: "(1) the danger of prejudice to the party opposing the modification, (2) the length of delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith." In re Vitamins Antitrust Class Actions, 327 F.3d 1207, 1209 (D.C. Cir. 2003) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)). Courts in this District have found that the third factor—how much the movant was to blame for the neglect—is the most important. See Jarvis v. Parker, 13 F. Supp. 3d 74, 78-79 (D.D.C. 2014); see also Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 811 F. Supp. 2d 216, 225 (D.D.C. 2011) ("Relief under Rule 60(b)(1) turns on equitable factors, notably whether any neglect was excusable."). A court considering any motion under Rule 60(b) "must balance the interest in justice with the interest in protecting the finality of judgments." Summers v. Howard Univ., 374 F.3d 1188, 1193 (D.C. Cir. 2004). Additionally, "Rule 60(b) is not 'a vehicle for presenting theories or arguments that could havebeen raised previously.'" Walsh v. Hagee, 10 F. Supp. 3d 15, 19 (D.D.C. 2013) (citation omitted).

III. Analysis

Stephenson alleges that "a clerical error prevented Defendant from being served properly." Mot. at 4. He states, without further explanation, that "the signature card sent to the US [sic] Attorney's Office and the Attorney General was lost by the Plaintiff's attorney's mailing sorting service." Id. Although Stephenson's attorney represents that he discovered this error after the Court's November 20 Order, he alleges nonetheless, and again without further explanation, that he "was unable [sic] properly effectuate service by the December 4, 2019 deadline." Id. He argues that reconsideration is warranted because otherwise his claims will be time-barred.⁴ See id. at 5-6. As set forth below, this explanation—to the extent that it even makes sense—does not justify the extraordinary relief Stephenson seeks.

As for Rule 59(e), Stephenson does not argue the existence of "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Trudel, 924 F.3d at 1287 (quotation omitted). Indeed, his own role in the failure to effectuate service undercuts any possible claim of manifest injustice. See Piper, 312 F. Supp. 2d at 22-23 (observing that "manifest injustice does not exist where, as here, a party could have easily avoided the outcome, but instead elected not to act until after a final order had been entered" (quotation omitted)). Rather, he appears to be trying to use this motion as a vehicle to make arguments in favor of an extension under Rule 4(m). This he cannot do becausehe had every opportunity to request such an extension on or before December 4. Id. at 22 (noting that "Rule 59(e) motions are not granted when losing parties enlist the motion to make new arguments that could have been raised prior to final judgment"); see also W.C. & A.N. Miller Cos. v. United States, 173 F.R.D. 1, 3 (D.D.C. 1997), aff'd sub nom. Hicks v. United States, No. 99-5010, 1999 WL 414253 (D.C. Cir. May 17, 1999) (observing that Rule 59(e) is not an opportunity "to bring before the Court theories or arguments that could have been advanced earlier").

As for Rule 60(b)(1), Stephenson has not shown that any negligence on his part is excusable. As discussed above, Rule 4 required him to serve Chao, the United States Attorney, and the Attorney General by October 27, 2019. He failed to do so. At that point, the Court could have dismissed the case under Rule 4(m).⁵ Even so, because "the service requirements for federal agencies and officials are complex," Morrissey v. Wolf, No. 1:19-CV-01956 (TNM), 2019 WL 6051561, at *3 (D.D.C. Nov. 15, 2019), the Court offered Stephenson another opportunity. Not only did the Court give Stephenson more time, but it explained that—in addition to Chao—he also needed to serve the United States Attorney and the Attorney General, and it pointed him to the relevant rules. Courts assume that lawyers possess a basic proficiency in the rules of civil procedure. Cf. Ctr. for Nuclear Responsibility, Inc. v. U.S. Nuclear Regulatory Comm'n, 781 F.2d 935, 942 (D.C. Cir. 1986) ("It is hardly unreasonable to impute knowledge of simple, mechanical procedural rules to attorneys who,...