United States Court of Appeals

for the Fifth Circuit

No. 20-60889

Summary Calendar

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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

June 3, 2021

Lyle W. Cayce

Clerk

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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).

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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 

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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 timebarred.

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.”).

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