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JOHNSON v. ASHCROFT

August 17, 2005.

EMANUEL JOHNSON, JR., Plaintiff,
v.
JOHN ASHCROFT, et. al. Defendants.



The opinion of the court was delivered by: RICARDO URBINA, District Judge

MEMORANDUM OPINION

DENYING IN PART AND GRANTING IN PART THE DEFENDANTS' MOTION TO DISMISS THE COMPLAINT
I. INTRODUCTION
The pro se plaintiff, Emanuel Johnson, Jr., brings a constitutional torts claim against various employees of the District of Columbia. Specifically, the plaintiff sues the following D.C. employees in their official and individual capacities: Kelvin Robinson, Barrett Prettyman, Charles Maddox, Austin Anderson, Karen Branson, Judy Banks, Gail Davis, Teresa Quon, David Jackson, Terry Wyllie, and John A. Koskinen (collectively, the "D.C. defendants").*fn1 The plaintiff sues D.C. defendants Prettyman and Wyllie for allegedly interfering with his employment relationship with the D.C. Office of the Inspector General ("OIG"). The plaintiff sues the remaining D.C. defendants for allegedly submitting false evidence in a related proceeding. This matter is before the court on the D.C. defendants' motion to dismiss the complaint for failure to effect timely service and for failure to comply with the applicable statutes of limitations. Because the plaintiff makes a cognizable claim against Prettyman and Wyllie, the court denies the defendant's motion to dismiss the claims against them. Because the claims against Davis, Quon, Jackson, Maddox, Andersen, Branson, Koskinen, Robinson and Banks are barred by res judicata, the court grants the motion to dismiss as to those defendants.

  II. BACKGROUND

  A. Factual History

  The plaintiff, an African-American male, worked as a special agent with the FBI between 1973 and 1999. Compl. at 13. During that time, the plaintiff was a named plaintiff in a Title VII class action lawsuit filed in the United States District Court for the District of Columbia by African-American special agents against the FBI. Id. at 26. That lawsuit, commonly known as the BADGE lawsuit, settled in 1993. Id.; Mem. in Support of Pl.'s Opp'n to Defs.' Mot. to Dismiss ("Pl.'s Opp'n") at 4. After retiring from the FBI, the plaintiff began working as a special agent with the OIG. Pl.'s Opp'n at 3-4. Although it is unclear from the plaintiff's complaint, it seems that the plaintiff applied to work at the OIG twice: once in 1998 and once in 1999.*fn2 Compl. at 4, Ex. E. In Counts III and IV of the plaintiff's complaint,*fn3 the plaintiff alleges that D.C. defendants Prettyman and Wyllie conspired to interfere, and did interfere, with his employment relationship with the OIG. Id. at 25-71. Specifically, the plaintiff alleges that Wyllie spread rumors about him and that he was not selected for a position at the OIG in 1998 as a result. Id. at 67-68. The plaintiff further alleges that Prettyman improperly considered racially-charged statements made by federal defendant Carter in his decision not to hire the plaintiff in 1998. Pl.'s Opp'n at 4, Ex. E. The plaintiff claims that he found out about Wyllie's and Prettyman's actions after on April 14, 2003, when he heard Richard Sullivan's testimony at a trial related to the plaintiff's termination from the OIG, Johnson v. Ashcroft et al., No. 00-cv-2743. Pl.'s Opp'n at 2-3, 8, Ex. E.

  The remaining counts of the plaintiff's complaint allege that some of the D.C. defendants provided false evidence to the court during the proceedings surrounding his termination from the OIG after he was hired in 1999. Compl. 72-74. The plaintiff contends that the false evidence, consisting of a trial exhibit and an affidavit, resulted in an adverse ruling in Johnson v. Ashcroft et al., No. 00-cv-2743, on July 9, 2003. Compl. at 73-74; Pl.'s Opp'n at 8.

  B. Procedural History

  The plaintiff filed the complaint in the current action on July 9, 2004. The plaintiff claims that he executed requests for waiver of service as to the D.C. defendants in the early part of November 2004. Pl.'s Opp'n at 5. Defendant Banks returned a signed request for a waiver of service on November 13, 2004, id. at 2, and was the only D.C. defendant to return the request for waiver of service. See Compl. at 6; Def.'s Mot. at 5.

  The D.C. defendants filed a motion to dismiss the complaint on December 21, 2004 because the plaintiff failed to effect timely service. Additionally, the D.C. defendants claim that the plaintiff's complaint is time barred by the applicable statute of limitations. The court now turns to the defendants' motion.

  III. ANALYSIS

  A. Failure to Effect Timely Service

  The defendants first argue that the complaint should be dismissed because the plaintiff did not effect timely service on the D.C. defendants, as required by Federal Rule of Civil Procedure 4(m). Defs.' Mot. at 4. The court agrees that the plaintiff failed to effect timely service. But, because this Circuit gives wide latitude to pro se plaintiffs and because the D.C. defendants have not been prejudiced by the late service, the court, in its discretion, declines to dismiss the plaintiff's complaint for failure to timely serve the defendants.

 
1. Legal Standard for a Rule 12(b)(5) Motion to Dismiss for Insufficient Service of Process
  A party can move the court to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process. "[T]he party on whose behalf service is made has the burden of establishing its validity when challenged; to do so, he must demonstrate that the procedure employed satisfied the requirements of the relevant portions of Rule 4 and any other applicable provision of law." Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987) (internal quotations omitted); Hilsaka v. Jones, 217 F.R.D. 16, 20 (D.D.C. 2003). Rule 4 governs service of process. FED. R. CIV. P. 4. Rule 4(m) provides the time limits for service and the consequences of failing to provide proper service. It states that:
 
[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
FED. R. CIV. P. 4(m). Thus, where the plaintiff fails to effect proper service within the 120-day time limit laid down by Rule 4(m), the plaintiff carries the burden of showing good cause for that failure. FED. R. CIV. P. 4(m); Whitehead v. CBS/Viacom, Inc., 221 F.R.D. 1, 3 (D.D.C. 2004). Even if the plaintiff does not show good cause, the court may, in its discretion, direct the plaintiff to effect service within a certain time rather than dismiss the case. FED. R. CIV. P. 4(m). Ultimately, however, unless the procedural requirements of effective ...

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