United States District Court, D. Minnesota
Jean Lee, plaintiff pro se.
Jennifer M. Waterworth, Esq. Gislason & Hunter, LLP,
counsel for defendants.
S. Doty, Judge United States District Court
matter is before the court upon the motion to dismiss by
defendants Fairview Health Services and Fairview Southdale
Hospital. Based on a review of the file, record, and
proceedings herein, and for the following reasons, the court
denies the motion.
January 10, 2017, pro se plaintiff Claire Jean Lee filed suit
against defendants for alleged violations of the Americans
with Disabilities Act, the Emergency Medical Treatment and
Active Labor Act, and the Rehabilitation Act, and for
intentional infliction of emotional distress. On January 31,
the court granted Lee's application to proceed in forma
pauperis and ordered the United States Marshal to serve a
copy of the complaint and summons on the defendants as
directed by Lee. Lee failed to properly serve defendants
within 90 days because she believed that she had 120 days to
complete service. She moved the court for a 30-day extension
to amend her complaint and complete service. See ECF
No. 9. On May 11, the court granted a 30-day extension and
ordered Lee to file an amended complaint by June 1.
See ECF No. 11. Lee was not able to file her amended
complaint until June 6 because of an alleged series of events
beyond her control. See Pl.'s Opp'n Mem. at
4; ECF No. 12. On June 5, the U.S. Marshal served Fairview
Southdale Hospital with the original complaint. See ECF
Nos. 13, 20. The U.S. Marshal attempted to serve Fairview
Health Services on July 14, but was unable to do so because
of a wrong address.See ECF Nos. 22, 25. Because
defendants were served with the original, rather than the
amended complaint, the court ordered that Lee submit
completed Marshal Service Forms for each of the defendants
and, once she did so, a summons would be issued and the U.S.
Marshal would serve defendants with the amended complaint.
See ECF No. 20. It appears that Lee complied with
the order, because the clerk's office issued a summons
for each defendant on August 1. See ECF No. 32. The
U.S. Marshal successfully served the summons and amended
complaint on both defendants on September 6. See ECF
now move to dismiss arguing that the court lacks personal
jurisdiction because of insufficient service of process.
Standard of Review
service or waiver of process, the court lacks jurisdiction
over a defendant. See Printed Media Servs., Inc. v. Solna
Web, Inc., 11 F.3d 838, 843 (8th Cir. 1993). A plaintiff
must make a prima facie showing that the court has personal
jurisdiction over the defendants. See Digi-Tel Holdings,
Inc. v. Proteq Telecomms. (PTE), Ltd., 89 F.3d 519, 522
(8th Cir. 1996). When considering whether personal
jurisdiction exists, the court views the evidence in the
light most favorable to the plaintiff and may consider
matters outside the pleadings. Id.; see Dever v.
Hentzen Coatings, Inc., 380 F.3d 1070, 1073 (8th Cir.
the Federal Rules of Civil Procedure, a plaintiff must serve
all defendants with a copy of the summons and complaint
within ninety days of the filing of the complaint.
Fed.R.Civ.P. 4(m). But the court must extend the time for
service if the plaintiff shows good cause for failure to
timely serve the defendants. Id.; see also Kurka
v. Iowa Cty., Iowa, 628 F.3d 953, 957 (8th Cir. 2010);
Colsante v. Wells Fargo Corp., 81 Fed. App'x
611, 612-613 (8th Cir. 2003) (per curiam). Even if the
plaintiff fails to show good cause, the court has discretion
to grant an extension if the plaintiff demonstrates excusable
neglect. Kurka, 628 F.3d at 957; Colsante,
81 Fed. App'x at 613.
cause is likely (but not always) to be found when  the
plaintiff's failure to complete service in timely fashion
is a result of the conduct of a third person, typically the
process server,  the defendant has evaded service of
process or engaged in misleading conduct,  the plaintiff
has acted diligently in trying to effect service or there are
understandable mitigating circumstances, or  the plaintiff
is proceeding pro se or in forma pauperis.”
Kurka, 628 F.3d at 957 (alteration in original)
(citation and internal quotation marks omitted).
Motion to Dismiss
Service of ...