# United States Court **of Appeals**  **f or 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 determin ing that Harris failed to serve the defendant with process and that his claims were time

- barred . We affirm.

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED June 3, 2021 Lyle W. Cayce Clerk Case: 20-60889 Document: 00515885469 Page: 1 Date Filed: 06/03/2021No. 20

- 60889

2 Harris was fired from his assistant manager position at Ramey’s Marketplace in 2019. In January 20 20 , Harris filed a charge of discrimination with the Equal Employment Opportunity Commission, alleging that h is termination was racially discriminato ry . 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 dismis s , and the district court granted the individual defenda n ts’ motion because they were not Harris’s “ empl o yers ” within the meanin g 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 purport edly show ing that he ha d served Ramey’s through a n individual named Thea Curtis on August 4, 2020. H is 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 a ssessed Harris’s attempted service under Mississippi l aw 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 ot her 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 simpl icity’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)

. Case: 20-60889 Document: 00515885469 Page: 2 Date Filed: 06/03/2021No. 20

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3 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 warrant ing 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 repeate d the allegations in his EEOC charge and his complaint. Neither Harris’s brief to this C ourt nor his response to the district court’s show

- cause order address es service of process

. And his arguments to this Court do not engage the district court’s stated r easons 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 t i me 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, O ccupational 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 require d no documents from Ramey’s Marketplace. Further, the delays one might attribute to this are not among the

reasons acc epted 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 pende ncy of a Case: 20-60889 Document: 00515885469 Page: 3 Date Filed: 06/03/2021No. 20

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4 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 brin g in g suit under the EEOC ’s notice , so any re

- filed claim would be time

barred

. 7 Because Harris offers n either explanation for his delay n or an argu m e nt for tolling, we also find no abuse of discretion in the decision to dismiss the case with prejudice.

There fore , 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 rig hts.” ) (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 tol l the ninety

- day limitations period.”). Case: 20-60889 Document: 00515885469 Page: 4 Date Filed: 06/03/2021