Taylor v. Patrick, Civil No. 2014-25

TERESA TAYLOR, Plaintiff, v. RON PATRICK, Defendant.

Civil No. 2014-25

DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN

March 8, 2017

ATTORNEYS:

Teresa Taylor

Pro se plaintiff,

Treston E. Moore, Esq.

Moore, Dodson & Russell, P.C.

St. Thomas, VI

For Sibs, The Bistro and Ron Patrick.

ORDER

GÓMEZ, J.

Before the Court is the motion of Teresa Taylor for an extension of time to file a second amended complaint.

I. FACTUAL AND PROCEDURAL HISTORY

Teresa Taylor ("Taylor") alleges that she was hired by The Bistro at Tillet Gardens ("The Bistro") to work at Sibs on the Mountainside ("Sibs"). She began working at Sibs on February 23, 2013. Taylor alleges that while working at Sibs, she was: not paid a minimum wage; forced to work unpaid for overtime; and not given breaks. She alleges that she was inappropriately touched by the owner of Sibs and by a male bartender. She also alleges that she was abused by other staff after refusing the sexual advances of the male bartender.

In May, 2013, Taylor's employment was terminated when another employee discovered that Taylor was making written FBI and police reports. After Taylor was fired, she filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). Subsequently, the EEOC closed its file on the charge and sent Taylor a right-to-sue notice.

On March 3, 2014, Taylor filed a complaint in this matter. In her complaint, Taylor alleges several violations of Title VII. The caption of the complaint identified "Sibs, The Bistro" as a defendant. The body of the complaint identified Ron Patrick ("Patrick") and Robin Hitchcock ("Hitchcock") as additional defendants.

Taylor also filed a motion for leave to proceed in forma pauperis. On July 15, 2014, the Magistrate Judge granted Taylor's motion for leave to proceed in forma pauperis. The Magistrate ordered Taylor to prepare summonses in accordance with Federal Rule of Civil Procedure 4 and deliver the summonses to the Clerk of Court.

Shortly thereafter, Taylor delivered a summons to the Clerk of Court. The summons was directed to "Sibs on the Mountainside, c/o Ron Patrick." ECF No. 4. The United States Marshals Service subsequently filed a Process Receipt and Return Form. The form indicated that the summons was personally delivered to "Ron Patrick, Sibs on the Mountainside." ECF No. 6.

Sibs and The Bistro then entered limited appearances and filed a joint motion seeking to quash service of process. In their motion, Sibs and The Bistro asserted that they were separate entities, neither of which existed under the corporate names alleged in the complaint. The Magistrate granted the motion to quash service of process. She permitted Taylor to file an amended complaint, naming the correct defendants. The Magistrate further ordered Taylor to prepare summonses for the defendants.

On April 8, 2015, Taylor filed an amended complaint. Taylor named Patrick as the defendant in the caption and body of the amended complaint. The body of the amended complaint names Robin Hitchcock as an additional defendant. Taylor did not name Sibs or The Bistro as defendants in the amended complaint. Thereafter, the Clerk of Court issued a summons for Patrick. The United States Marshals Service subsequently filed a ProcessReceipt and Return Form indicating that the summons was personally delivered to Patrick.

On May 20, 2015, Patrick moved to dismiss the complaint. On March 23, 2016, the Court granted Patrick's motion. The Court held that Taylor had not adequately pled that Patrick was an "employer" for the purposes of a Title VII claim. Accordingly, the Court dismissed Taylor's claims against him.

Taylor was granted leave to file an amended complaint no later than 3:00 P.M. on March 31, 2016. In a document dated March 30, 2016, Taylor moved for an extension of time to file an amended complaint to the clerk. The Clerk of Court filed Taylor's motion on the docket on April 4, 2016.

In her motion, Taylor asserts that she did not receive a copy of the Court's March 23, 2016, order until March 30, 2016. As an employed single mother, Taylor claimed that she did not have sufficient time to amend her complaint. Taylor asked the Court to extend the filing deadline by 30 days.

II. DISCUSSION

Federal Rule of Civil Procedure 6 ("Rule 6") provides that "[w]hen an action may or must be done within a specified time, the court may, for good cause, extend the time . . . on motion made after the time has expired if the party failed to act because of excusable neglect." Fed. R. Civ. P. 6(b)(1)(B).

"At bottom, excusable neglect requires 'a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules.'" Kimberg v. Univ. of Scranton, 411 Fed. App'x 473, 477 (3d Cir. 2010) (quoting Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1312 (3d Cir. 1995)). Rule 6's "excusable neglect" "is a somewhat 'elastic concept' and is not limited strictly to omissions caused by circumstances beyond the control of the movant." Pioneer Inv. Servs. v. Brunswick Associates Ltd., 507 U.S. 380, 392 (1993).

When considering whether neglect is "excusable," courts should consider "all relevant circumstances surrounding the party's omission." Id. at 395; see also In re Cendant Corp. PRIDES Litig., 234 F.3d 166, 171 (3d Cir. 2000) (explaining that the excusable neglect "inquiry is essentially equitable and necessitates considering a situation's totality"). "While 'all relevant circumstances' are properly considered, the Supreme Court specifically delineated four factors." In re Cendant Corp. PRIDES Litig., 234 F.3d at 171. These factors include "the danger of prejudice" to the opposing party, "the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant actedin good faith." Pioneer Inv. Servs., 507 U.S. at 395. The Third Circuit has also "considered the diligence of the moving party as well as whether the asserted inadvertence reflects either professional incompetence or an easily manufactured excuse incapable of verification by the court." Kimberg, 411 Fed. App'x at 477.

III. ANALYSIS

A. Taylor's Title VII Claims Against Hitchcock

As an initial matter, the Court notes that its March 23, 2016, order touched only on Taylor's claims against Patrick. Federal Rule of Civil Procedure 10 provides that "[t]he title of the complaint must name all the parties." Fed. R. Civ. P. 10(a) (emphasis added). Nevertheless, "a party not properly named in the caption of a complaint may still be properly before the court if the allegations in the body of the complaint make it plain the party is intended as a defendant." Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996); see, e.g., Barsten v. Dep't of Interior, 896 F.2d 422, 423 (9th Cir. 1990) (explaining that failure to identify defendant in the caption of a complaint may be excused "if the allegations made in the body of the complaint make it plain that the party is intended as a defendant" (internal quotation marks omitted)).

The caption of Taylor's complaint names a single defendant: Patrick. In the "Parties" section of Taylor's complaint, however, she names Hitchcock as an "[a]dditional defendant[]." See ECF No. 15 at 1-2. While the "Statement of Claim" in the complaint does not mention either Patrick or Hitchcock, several of the documents attached to Taylor's complaint describe Hitchcock's actions as Taylor's supervisor. See Fed. R. Civ. P. 10(c) ("A copy of a written instrument that is an exhibit is a part of the pleading for all purposes."). Considering this in conjunction with Taylor's pro se status, the Court finds that Taylor intended to name Hitchcock as a defendant in this action.

Upon examination of the record, it does not appear that service was ever effected on Hitchcock. When a plaintiff has been granted leave to proceed in forma pauperis, "it is the district court's responsibility to serve process upon all defendants." Jones v. Hashagen, 419 Fed. App'x 141, 144 (3d Cir. 2011) (internal quotation marks omitted) (quoting Young v. Quinlan, 960 F.2d 351, 359 (3d Cir. 1992)). In those circumstances, the court "must" "order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court." Fed. R. Civ. P. 4(c)(3) (emphasis added); see also 28 U.S.C. § 1915(d) ("The officers of the courtshall issue and serve all process, and perform all duties in [in forma pauperis] cases.").

To trigger that obligation on the part of the Court, an in forma pauperis plaintiff must "request service upon the appropriate defendant and attempt to remedy any apparent service defects of which he ha[s] knowledge." Jones, 419 F. App'x at 144 (original alterations omitted) (quoting Young, 960 F.2d at 359); see also Tagliamonte v. Wang, 496 F. App'x 208, 211 (3d Cir. 2012) ("[A] plaintiff, upon becoming aware of a service defect, may not 'remain silent and do nothing to effectuate such service.'" (quoting Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987)). Moreover, an in forma pauperis plaintiff must also prepare the summons for the clerk of the court. See Fed. R. Civ. P. 4(b). The text of Rule 4(b) "makes clear that the responsibility for filling in the summons falls on the plaintiff, not the clerk of the court." Fed. R. Civ. P. 4, advisory committee's note, 1993 amendment; see also Pierce v. Kyle, 445 Fed. App'x 201, 202 (11th Cir. 2011) (explaining that Rule 4(b) and Rule 4(c)(1) "provide that the plaintiff, not the court, is responsible for initiating service"). Rule 4(b) provides no exception for in forma pauperis plaintiffs.

Here, the record shows that Taylor delivered a completed summons form for Patrick to the Clerk of Court. The Clerk ofCourt issued the summons for Patrick on April 8, 2015. There is no indication in the record that Taylor prepared a summons or requested...