Case: 12-20754 Document: 00512221189 Page: 1 Date Filed: 04/25/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 25, 2013
No. 12-20754 Lyle W. Cayce
Summary Calendar Clerk
SUSAN FLANDER,
Plaintiff–Appellant
v.
KFORCE, INC.; ROBYN DYCK; JP MORGAN CHASE; JIM SYKES,
Defendants–Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CV-00713
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Plaintiff Susan Flander (“Flander”) appeals the district court’s dismissal
of her claims against three defendants for failure to effect proper service and
against one defendant for failure to state a claim. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Flander sought employment as a technical writer with JP Morgan Chase
(“JPMC”) through Kforce, Inc. (“Kforce”), an employment recruiter for JPMC.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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After receiving an initial offer from JPMC, Flander failed a background check
due to an unresolved family-violence-related criminal charge filed against her.
Robyn Dyck (“Dyck”) of Kforce and Jim Sykes (“Sykes”) of JMPC’s security
operations informed Flander that the offer of employment was revoked. Flander
filed a Complaint against four defendants—Kforce, Dyke, JPMC, and Sykes1—
in the U.S. District Court for the Northern District of Texas on February 21,
2012. Flander represented herself pro se, in forma pauperis.
In her Complaint, Flander alleged that Dyck and Sykes violated U.S.
Department of Justice Order 556-73 by obtaining her prior arrest record. The
Magistrate Judge had Flander complete a questionnaire concerning her
allegations. In response to the questionnaire, Flander mentioned additional
claims involving civil rights violations and a conspiracy to violate her civil rights
under 42 U.S.C. §§ 1983, 1985, and 1986. Flander sought $100,000 in
compensation and aimed “to achieve fair employment standards for women who
have been victims of family violence regardless of conviction.” In the
questionnaire, Flander claimed that Dyck and Sykes violated her civil rights
under Title VII of the Civil Rights Act of 1964. To the Equal Employment
Opportunity Commission, Flander alleged gender discrimination, contending
that each of the parties “considers me to be a threat because I am a female.”
The case was transferred to the U.S. District Court in the Southern
District of Texas, Houston Division on March 5, 2012. Flander’s Complaint was
not served upon any of the four defendants within the 120-day period required
under the Federal Rules of Civil Procedure. Fed. R. Civ. P. 4(m). Nonetheless,
on June 25, 2012, the Magistrate Judge issued an order directing Flander to
1
We note that it is unclear whether Flander intended to assert claims against only the
individuals Dyck and Sykes, or whether she intended to include their respective corporate
entities as parties in the lawsuit as well. We will, however, consistent with the district court’s
determination, characterize the Complaint as bringing claims against four defendants.
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properly serve defendants within fourteen days. Flander failed to serve any of
the four defendants within the allotted fourteen-day extension period. On
September 10, 2012, on behalf of Flander, the Magistrate Judge ordered the U.S.
Marshals Service to serve parties described by Flander as “Kforce-Robyn Dyck”
and “JPMorgan Chase-Jim Sykes” at two separate addresses provided by
Flander. No effective service was ever made to Sykes at JPMC because he did
not work or reside at the address provided by Flander. To date, neither JPMC
nor Sykes has been served, and neither has made an appearance in the suit.
Service of Dyck at the provided address was made on September 17, 2012—over
six months after the cause of action was filed, and two months after the
expiration of the fourteen-day extension provided by the Magistrate Judge.
On November 1, 2012, the Magistrate Judge issued a Memorandum and
Recommendation concluding that: (1) Kforce, JPMC, and Sykes were not
properly served (and that in the alternative, Flander failed to state a claim
against them), (2) Flander failed to state a claim against Dyck, and (3) all of
Flander’s causes of action against the defendants should be dismissed with
prejudice under 28 U.S.C. § 1915 because of their frivolous nature. After
Flander filed numerous additional motions and documents, the court issued an
order on November 2, 2012, enjoining Flander from any additional filings not
related to the Magistrate’s then-pending memorandum and recommendation.
On November 19, 2012, the district court adopted the Magistrate Judge’s
memorandum and recommendation and dismissed the case with prejudice.
Flander timely filed her Notice of Appeal.
II. ANALYSIS
1. Failure to Effect Proper Service Against Kforce, JPMC, and Sykes
a. Standard of Review
This Court reverses the district court’s dismissal for failure to effect proper
service only when the district court has abused its discretion. Young v. City of
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Hous., 471 F. App’x 389, 390 (5th Cir. 2012) (unpublished) (per curiam); Lindsey
v. U.S. R.R. Ret.Bd., 101 F.3d 444, 445 (5th Cir. 1996).
b. Kforce
The district court did not err in dismissing Flander’s claim against Kforce
for insufficient service of process. The Federal Rules of Civil Procedure provide
that a corporation must be served either “by delivering a copy of the summons
and of the complaint to an officer, a managing or general agent, or any other
agent authorized by appointment or by law to receive service of process” or by
following the dictates of applicable state law regarding service of an individual.
Fed. R. Civ. P. 4(h)(1)(B), 4(e)(1); see also R. 12(b)(5).
Flander never effected proper service on Kforce. Flander’s summons was
directed to “Kforce-Robyn Dyck.” However, the two are separate parties. Based
on Flander’s summons, the U.S. Marshals Service served only Robyn Dyck, who
was not an officer or agent authorized by appointment or law to receive service
of process on behalf of Kforce. Kforce designated CT Corporation of Dallas,
Texas as its registered agent for service in Texas. Dyck served as a “talent
manager” at Kforce and recruited potential employees on behalf of Kforce’s
clients. In sum, Kforce was never properly served, much less within the
fourteen-day deadline specified by the district court.
Pro se parties have received some leeway with regard to service deadlines
and procedures. E.g., Rochon v. Dawson, 828 F.2d 1107, 1109–10 (5th Cir. 1987)
(holding that a faultless pro se litigant will not be penalized for mistakes made
by U.S. Marshals during service). However, it is within the discretion of the
court to dismiss a pro se plaintiff’s cause of action when the plaintiff’s own
carelessness contributed to the failure of service, id., or where the plaintiff
cannot show good cause for failure to meet deadlines for service, Sys. Signs
Supplies v. U. S. Dep’t of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990) (finding no
abuse of discretion in dismissal of pro se plaintiff’s case for failure to effect
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service, even though plaintiff made good faith efforts to serve defendants). It
follows that the district court did not abuse its discretion in dismissing Flander’s
claim against Kforce for failure to effect service.
c. JPMC and Sykes
The district court, adopting the Magistrate Judge’s memorandum and
recommendation for dismissal, found that JPMC and Sykes were not served.
The Magistrate Judge reminded Flander on June 25, 2012, of her obligation to
serve defendants and gave her additional time to effect proper service. Despite
these allowances, JPMC and Sykes have not been served to date and have not
made an appearance in the suit. Thus, the district court did not abuse its
discretion in dismissing Flander’s claims against JPMC and Sykes for failure to
serve. Fed. R. Civ. P. 4(m).
2. Failure to State a Claim Against Dyck
a. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of a
complaint for failure to state a claim upon which relief can be granted. Fed. R.
Civ. P. 12(b)(6). We review such a dismissal de novo. Lindquist v. City of
Pasadena, Tex., 525 F.3d 383, 386 (5th Cir. 2008). All well-pleaded facts must
be accepted as true and should be viewed “in the light most favorable to the
plaintiff.” Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012) (citing In
re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)). To
withstand a motion to dismiss, a complaint must contain enough facts to state
a claim to relief that is plausible on its face. In re Katrina Canal Breaches Litig.,
495 F.3d at 205.
b. Discussion
Flander’s cause of action against Dyck was correctly dismissed for failure
to state a claim upon which relief may be granted. Dyck was served well after
the close of the initial 120-day window for service and the fourteen-day deadline
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extension for service provided by the Magistrate Judge. However, the district
court did not dismiss based on failure to effect proper service, but instead
dismissed Flander’s cause of action against Dyck for failure to state a claim upon
which relief may be granted. Fed. R. Civ. P. 12(b)(6). We do the same.
Flander’s Complaint states only one claim: that Dyck violated U.S.
Department of Justice (“DOJ”) Order 556-73 by obtaining and reviewing
Flander’s criminal history. However, this DOJ Order merely provides
procedures for subjects of FBI Identification Records to obtain copies of their own
records, and has no application to records obtained by others for the purpose of
employment screening. 28 C.F.R. § 16.30. Moreover, Flander has not alleged a
meaningful connection between Dyck (employed by Kforce) and JPMC’s review
of Flander’s background or even that Dyck ever accessed the background check
or knew the precise reason Flander failed it.
In responding to the questionnaire from the Magistrate Judge, Flander
made several other claims under federal statutes and acts. Under each of these
theories of recovery, Flander fails to state a claim upon which relief may be
granted, as detailed in the Magistrate Judge’s memorandum and
recommendation and adopted in full by the district court in dismissing the case.
The first purported violation is of 42 U.S.C. § 1983. As noted by the
Magistrate Judge, this statute applies only to state actors. 42 U.S.C. § 1983; Doe
v. Covington Cnty. Sch. Dist., 675 F.3d 849, 886 (5th Cir. 2012) (en banc) (Weiner
J., dissenting). Flander cannot establish that Dyck, a talent recruiter working
for a private company, was a state actor.
Flander also contends that Dyck engaged in a conspiracy to violate her
civil rights under 42 U.S.C. § 1985. However, Flander has alleged no facts to
demonstrate that Dyck entered into a conspiracy against Flander, much less one
based upon her gender. If Flander means to allege that defendants
discriminated against her because of her past criminal charges, this argument
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fails because under Section 1985 “[a] plaintiff must show membership in some
group with inherited or immutable characteristics . . . or that the discrimination
resulted from the plaintiff’s political beliefs or associations.” Galloway v.
Louisiana, 817 F.2d 1154, 1159 (5th Cir. 1987). Flander filed a related claim
alleging Dyck had knowledge of and neglected to prevent a conspiracy against
her, in violation of 42 U.S.C. § 1986. In the absence of a viable claim under §
1985, no claim under § 1986 will stand. Lockett v. New Orleans City, 607 F.3d
992, 1002 (5th Cir. 2010) (noting a viable claim under § 1986 requires a similarly
viable claim under Section 1985).
Flander also contends that Dyck engaged in sexual discrimination against
her in violation of Title VII of the Civil Rights Act of 1964. However, Flander
alleges no facts demonstrating that Dyck’s actions were motivated by Flander’s
gender. Finally, Flander’s contention that Dyck retaliated against her also fails
to state a claim by failing to demonstrate that Flander engaged in a protected
activity.
Kforce requested that this Court award damages and costs and bar
Flander from filing further actions absent express permission from the Fifth
Circuit. While Flander filed two other related suits on the same day as the
present claim, all stemmed from the single incident of her denial of employment.
We decline to bar Flander from filing additional suits and decline Kforce’s
request for costs and fees.
III. CONCLUSION
For the reasons discussed above, we AFFIRM the district court’s dismissal
of the plaintiff’s claims.
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