Hall v. Planet Fitness ( 2020 )

FILED
UNITED STATES COURT OF APPEALS United States Court of Appeals
Tenth Circuit
FOR THE TENTH CIRCUIT
_________________________________ April 20, 2020
Christopher M. Wolpert
ALBERT MATTHEW HALL, III, a/k/a Clerk of Court
Albert Matthew Hall III Bey,
Plaintiff - Appellant,
v. No. 20-5001
(D.C. No. 4:19-CV-00390-GKF-JFJ)
PLANET FITNESS; EXCEL FITNESS, (N.D. Okla.)
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HARTZ, MATHESON, and CARSON, Circuit Judges.
_________________________________
Albert Matthew Hall, III, representing himself, 1 appeals the dismissal of his
amended complaint without prejudice for failing to comply with a court-ordered deadline
to serve the defendants. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Because Mr. Hall is pro se, we construe his filings liberally, but we do not
act as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
In his amended complaint, Mr. Hall alleged that when defendants Planet Fitness
and Excel Fitness fired him for using marijuana in violation of their illegal drug policy,
they discriminated against him based on his religion in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. He further alleged that using marijuana is a
sacramental practice in his religion.
On November 20, 2019, the district court ordered Mr. Hall to show cause why he
had not filed a return of service to show the defendants had been served. He responded
that the court had not directed him to serve the defendants. The court then set a deadline
for Mr. Hall to effect service, but he failed to comply.
On December 27, 2019, the district court entered the following order:
On December 11, 2019, the court directed plaintiff
Albert Matthew Hall, III to serve Summons upon defendants
Planet Fitness and Excel Fitness, in the manner prescribed by
Federal Rule of Civil Procedure 4, and file with the court
returns of service by December 26, 2019. The court advised
that failure to do so would result in dismissal of this case
without prejudice. See [Doc. 15]. Plaintiff failed to file
returns of service by December 26, 2019. Accordingly,
plaintiff’s claims are dismissed without prejudice, and the
Court Clerk is directed to terminate this matter.
The court entered judgment the same day.
In his brief, Mr. Hall attempts to argue the merits of his claim but does not contend
the district court erred by dismissing his case for failure to file returns of service. He has
therefore waived any challenge to the district court’s ruling. See
2
of Labor, 422 F.3d 1155, 1174 (10th Cir. 2005) (“The failure to raise an issue in an
opening brief waives that issue.”).
Mr. Hall’s appeal would fail on the merits. “[D]ismissal is an appropriate
disposition against a party who disregards court orders and fails to proceed as required by
court rules.” United States ex rel. Jimenez v. Health Net, Inc., 400 F.3d 853, 855 (10th
Cir. 2005). “[A] district court possesses broad discretion in determining whether to
dismiss a petition without prejudice for failing to comply with court orders.” Bollinger v.
La Villa Grande Care Ctr., 296 F. App’x 658, 659 (10th Cir. 2008) (unpublished) (cited
for persuasive value under 10th Cir. R. 32.1(A)). For the reasons stated in the district
court’s order, we see no abuse of discretion here. See 8 James Wm. Moore et al.,
Moore’s Federal Practice – Civil ¶ 41.53 (3d ed. 2019) (“When the dismissal is without
prejudice, an abuse of discretion will generally not be found, because the plaintiff may
simply refile the suit.”).
We affirm the district court’s judgment.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
3