The opinion of the court was delivered by: Judge Marbley
This matter is before the Court on Defendant Barley's Motion to Dismiss Plaintiff's Amended Complaint pursuant to Fed. R. Civ. P. 4 (m), for failure to make service of the summons and complaint within 120 days after filing the complaint. The Court also takes up Defendant Barley's Motion to Strike Plaintiff's Second Reply pursuant to Loc. R. 7.2 (a) (2) because leave of the Court was not given to file a "second reply."
For the reasons stated herein, Defendant's Motion to Dismiss Plaintiff's Amended Complaint is GRANTED and Defendant's Motion to Strike Plaintiff's Second Reply is GRANTED.
II. FACTS AND PROCEDURAL HISTORY
Richard K. Collins ("Collins" or "Plaintiff") brought a claim against his former employer, the Ohio Department of Job and Family Services ("ODJFS"), before the U.S. Equal Employment Opportunity Commission. The Commission investigated, found his claim to be without merit, and issued him a "right-to-sue" letter pursuant to 42 U.S.C. § 2000e. Plaintiff then instituted this action against ODJFS and various other state officials, including his former boss, Christopher Barley ("Barley" or "Defendant"), by filing a motion to proceed in forma pauperis and a complaint.
Plaintiff received his "right-to-sue" letter on February 9, 2005. Under § 2000e-5 (f) (1), a "right-to-sue" letter gives a complainant 90 days to take legal action by filing a complaint. Collins' filing deadline, therefore, was May 10, 2005. Collins' complaint was filed on May 11, 2005.
Defendant ODJFS moved to dismiss Collins' complaint because it was not timely filed. Upon consideration, this Court determined that Collins' motion to proceed in forma pauperis was stamped "Received" by the Clerk on May 9, 2005 -- one day before the deadline. Therefore, Defendant ODJFS's motion to dismiss was denied. With his claim having been preserved, Collins filed an Amended Complaint on March 29, 2006.
At a status conference at this Court on May 10, 2006, Collins was notified by opposing counsel that Defendant Barley had never received a copy of the summons and the complaint, as required by Fed. R. Civ. P. 4 (m). Collins made a single attempt to serve Barley, by certified mail on July 26, 2006. This attempt was returned as "unclaimed" on July 27, 2006.
On August 10, 2006, Barley moved to dismiss Plaintiff Collins' Amended Complaint for failure to obtain service. At the time of Barley's motion, approximately 134 days had elapsed since the Amended Complaint had been filed. Plaintiff filed a Response in Opposition October 11, 2006; Barley submitted a Reply to Plaintiff's Response on October 16, 2006.
Without obtaining leave of the Court, Plaintiff Collins then filed a self-styled "2nd Reply to Barley's Motion to Dismiss" on November 7, 2006. Defendant moved to strike this brief on November 15, 2006. Plaintiff then filed a reply to Defendant's motion to strike on November 27, 2006. Accordingly, this matter is now ripe for consideration by this Court.
This Court first considers Defendant Barley's Motion to Strike Plaintiff's self-styled "2nd Reply to Defendant Barley's Motion to Dismiss," ...