Harris v. Ramey's Marketplace

Case: 20-60889 Document: 00515885469 Page: 1 Date Filed: 06/03/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 3, 2021
No. 20-60889
Lyle W. Cayce
Summary Calendar
Clerk
Nickos Harris,
Plaintiff—Appellant,
versus
Ramey’s Marketplace, Owner,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC 3:20-CV-318
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Nickos Harris appeals the dismissal of his Title VII claims for racial
discrimination and retaliation. The district court dismissed Harris’s claims
after determining that Harris failed to serve the defendant with process and
that his claims were time-barred. We affirm.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-60889 Document: 00515885469 Page: 2 Date Filed: 06/03/2021
No. 20-60889
Harris was fired from his assistant manager position at Ramey’s
Marketplace in 2019. In January 2020, Harris filed a charge of discrimination
with the Equal Employment Opportunity Commission, alleging that his
termination was racially discriminatory. The EEOC issued Harris notice of
his suit rights on January 31, 2020, which explained that he had ninety days
to file suit. Harris filed his pro se complaint on May 4, 2020 in the Southern
District of Mississippi, naming Ramey’s and two managers as defendants. 1
Defendants moved to dismiss, and the district court granted the individual
defendants’ motion because they were not Harris’s “employers” within the
meaning of Title VII. The district court then ordered Harris to show cause
why his case against Ramey’s should not be dismissed for failure to serve
process under Federal Rule of Civil Procedure 4(m). Harris responded by
filing a proof of service purportedly showing that he had served Ramey’s
through an individual named Thea Curtis on August 4, 2020. His
accompanying brief did not discuss the delayed attempt at service of process
and merely reargued the merits of his claims. Ramey’s again moved to
dismiss.
The district court assessed Harris’s attempted service under
Mississippi law in accordance with Federal Rule of Civil Procedure 4(e)(1).
Mississippi law provides that a business entity, like Ramey’s, can be served
through “an officer, a managing or general agent, or to any other agent
authorized by appointment or by law to receive service of process.” 2 The
district court found that Curtis did not qualify to accept service on Ramey’s
behalf because Ramey’s submitted uncontradicted evidence that Curtis was
1
Like the district court, we identify the defendant as Ramey’s Marketplace for
simplicity’s sake. The defendant’s legal name is “Double R Foods, LLC d/b/a Ramey’s
Marketplace.”
2
Miss. R. Civ. P. 4(d)(4).
2
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No. 20-60889
employed as a “scanning coordinator” at a separate entity. Thus, Harris had
failed to serve Ramey’s and had made no showing of good cause warranting
an extension of the time for doing so. 3 Although failure to serve typically
results in dismissal without prejudice, here, the district court found that
Harris’s claims were time-barred, and so it dismissed his remaining claims
with prejudice. Harris appealed.
A district court enjoys broad discretion to dismiss a case for failure to
serve process, and we review only for abuse of that discretion. 4 Because
Ramey’s contested Harris’s service of process, the burden shifted to Harris
to establish the validity of his attempt. 5
Here, Harris has merely repeated the allegations in his EEOC charge
and his complaint. Neither Harris’s brief to this Court nor his response to the
district court’s show-cause order addresses service of process. And his
arguments to this Court do not engage the district court’s stated reasons for
dismissing his complaint. Harris does not indicate why he delayed in serving
Ramey’s until the day the show-cause order issued, though he mentions for
the first time on appeal that he “was impacted by Covid-19 and had trouble
receiving papers from Ramey’s Marketplace.” 6
3
Fed R. Civ. P. 4(m).
4
Henderson v. Republic of Texas, 672 F. App’x 383, 384 (5th Cir. 2016) (citing
George v. U.S. Dep’t of Labor, Occupational Safety & Health Admin., 788 F.2d 1115, 1116
(5th Cir. 1986)).
5
Henderson, 672 F. App’x at 384 (citing Carimi v. Royal Carribean Cruise Line, Inc.,
959 F.2d 1344, 1346 (5th Cir. 1992)).
6
Even when read broadly, this sheds no light on why Harris was unable to
effectively serve the defendant with process, a task which required no documents from
Ramey’s Marketplace. Further, the delays one might attribute to this are not among the
reasons accepted by this Court for tolling the ninety-day filing window. See Melgar v. T.B.
Butler Publ’g Co., Inc., 931 F.3d 375, 380 (5th Cir. 2019) (“We have opined that equitable
tolling can excuse an untimely filing in the following circumstances: (1) the pendency of a
3
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No. 20-60889
We find no error in the district court’s determination that Harris’s
sole attempt to serve Ramey’s through Curtis was ineffective. Moreover,
Harris’s delay took his case well outside of the ninety-day window for
bringing suit under the EEOC’s notice, so any re-filed claim would be time-
barred. 7 Because Harris offers neither explanation for his delay nor an
argument for tolling, we also find no abuse of discretion in the decision to
dismiss the case with prejudice.
Therefore, the district court’s dismissal of Harris’s claims against
Ramey’s Marketplace is affirmed.
suit between the same parties in the wrong forum; (2) plaintiff’s unawareness of the facts
giving rise to the claim because of the defendant’s intentional concealment of them; and
(3) the EEOC’s misleading the plaintiff about the nature of her rights.”) (internal
quotations omitted).
7
Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992) (“If a Title VII
complaint is timely filed pursuant to an EEOC right-to-sue letter and is later dismissed, the
timely filing of the complaint does not toll the ninety-day limitations period.”).
4