United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
BOWBEER, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant State of Minnesota
Department of Employment and Economic Development's
Motion to Dismiss [Doc. No. 20]. The motion was referred to
the undersigned for the issuance of a report and
recommendation (“R&R”) in an Order of
Reference dated October 5, 2018 [Doc. No. 28]. For the
reasons set forth below, the Court recommends that the case
be dismissed without prejudice on two grounds: (1) for
Plaintiff's failure to serve Defendant, pursuant to
Federal Rule of Civil Procedure 4(m); and (2) for failure to
prosecute, pursuant to Federal Rule of Civil Procedure 41(b).
Bonnie Sneed is suing the State of Minnesota Department of
Employment and Economic Development (“DEED” or
“Defendant”) for employment discrimination under
the Age Discrimination in Employment Act, the Americans with
Disabilities Act, the Family Medical Leave Act, and the
Minnesota Human Rights Act. (Am. Compl. at 2-3 [Doc. No.
10].) Plaintiff worked for DEED from January 2016 until her
date of termination in March 2017.
commenced this lawsuit in April 2017. She is representing
herself in this matter, but she did not file an application
to proceed in forma pauperis. The day after
Plaintiff filed the complaint, the Clerk of Court issued a
summons, but Plaintiff never served the summons and complaint
on the Defendants named in the initial
complaint.Therefore, on September 6, 2017, this Court
ordered Plaintiff to (1) file proof of service within ten
days, (2) notify Defendants they were required to file an
answer to the complaint, (3) file the notice to Defendants on
CM/ECF, and (4) if no answer was filed, apply for an entry of
default. (Order at 1-2 [Doc. No. 9].) Plaintiff did not
comply with the order. Instead, Plaintiff filed an amended
complaint [Doc. No. 10] on December 4, 2017, nearly three
months later. The Clerk of Court issued a new summons, but
Plaintiff did not diligently file proof of service of the
summons and amended complaint.
4, 2018, Plaintiff filed an affidavit of service by Ramsey
County Deputy Sheriff Ying Yang, who averred that he had
served DEED by leaving a copy of the amended complaint with
DEED Customer Service Specialist Pam Kaasa on May 11, 2018.
(Yang Aff. of Service, May 11, 2018 [Doc. No. 12-1].)
August 20, 2018, the Court issued an order to show cause why
the case should not be dismissed for failure to effect proper
service of the amended complaint. [Doc. No. 13.] The Court
instructed Plaintiff to (1) file proof of service of the
amended complaint within ten days, (2) notify Defendant that
it was required to file an answer to the complaint, (3) file
the notice to Defendant on CM/ECF, and (4) if no answer was
filed, apply for an entry of default. (Order at 1-2 [Doc. No.
13].) On August 31, 2018, Plaintiff filed a new affidavit of
service by Deputy Yang, who averred that he had served DEED
on August 28, 2018, by leaving a copy of the summons and
amended complaint with Customer Service Specialist Pam Kaasa.
(Yang Aff. of Service, Aug. 28, 2018 [Doc. No. 14].)
September 17, 2018, Plaintiff filed a letter with the Court
asking that a default judgment be entered against Defendant
because Defendant had not filed an answer or otherwise
responded to the Amended Complaint. [Doc. No. 16.] The
Clerk's Office replied by letter that a default would not
be entered because Plaintiff had not complied with the order
to show cause; specifically, she had neither notified
Defendant that it was required to file an answer or otherwise
respond within ten days nor filed the notice on CM/ECF. [Doc.
filed the motion to dismiss on October 5, 2018. Plaintiff did
not respond to the motion, nor did Plaintiff appear at the
motion hearing on December 18, 2018. Indeed, Plaintiff has
not filed any documents or communicated with the Court since
September 25, 2018.
Service of Process
Defendant argues that any attempted service of process was
ineffective because the summons and complaint were served on
a “non-managerial and non-supervisory” DEED
employee. (Def.'s Mem. Supp. Mot. Dismiss at 2 [Doc. No.
23]; Michaelson Decl. ¶ 2 [Doc. No. 25.) The Federal
Rules of Civil Procedure require a plaintiff to serve a copy
of the summons and complaint on a defendant. Fed.R.Civ.P.
4(c)(1). To properly serve a state agency such as DEED, the
plaintiff must serve the summons and complaint either on the
state's chief executive officer or as permitted by state
law. Fed.R.Civ.P. 4(j)(2). Minnesota law provides that
service may be effected on the state attorney general, a
deputy attorney general, or an assistant attorney general.
Minn. R. Civ. P. 4.03(d). Officer Yang's attempt to serve
DEED by handing a copy of the summons and complaint to a DEED
employee was therefore ineffective.
defendant is not served with the summons and complaint in the
ninety days after the complaint is filed, Federal Rule of
Civil Procedure 4(m) requires dismissal without prejudice.
The Court may extend the time for service, however, “if
the plaintiff shows good cause for the failure.”
Fed.R.Civ.P. 4(m). Here, more than ninety days have passed
since the filings of the original complaint, and since the
filing of the amended complaint. Plaintiff has neither asked
for an extension of time to effect proper service nor shown
good cause for the failure to properly serve Defendant,
despite being put on notice of the defective service when
Defendant filed its motion to dismiss on October 5, 2018.
Consequently, the Court recommends that Plaintiff's
claims against Defendant be dismissed without prejudice
pursuant to Rule 4(m).
Failure to Prosecute
Plaintiff's failure to respond to Defendant's motion
to dismiss also supports another basis for dismissal: failure
to prosecute under Federal Rule of Civil Procedure 41(b).
That Rule provides for involuntary dismissal when a plaintiff
fails to prosecute her case, comply with the Federal Rules,
or comply with a court order. Fed.R.Civ.P. 41(b). All three
grounds are present here. Plaintiff has failed to prosecute
her case in that she did not oppose or otherwise respond to
Defendant's motion to dismiss, appear at the hearing on
the motion, or communicate to the Court any intent to proceed
with this action. Plaintiff appears to have abandoned her
case. In addition, Plaintiff has not complied with Federal
Rule of Civil Procedure 4 by properly serving a copy of the
summons and complaint on Defendant. Finally, Plaintiff has
not complied with the Court's orders of September 6, 2017
[Doc. No. 9] and August 20, 2018 [Doc. No. 13], ...