UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MARK ANTHONY PALZER, 

 Plaintiff - Appellant, 

v. 

COX OKLAHOMA TELECOM, LLC, 

a Delaware corporation, CoxCom, Inc., 

CoxCom, LLC, Cox Communications, 

LLC, or Cox Communications, or Cox 

Communications Kansas, LLC, 

 Defendant - Appellee. 

No. 16-5021 

(D.C. No. 4:15-CV-00564-GKF-TLW) 

(N.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before KELLY, GORSUCH, and MATHESON, Circuit Judges. 

_________________________________ 

Mark Anthony Palzer appeals the district court’s dismissal of his employment 

discrimination suit for failure to timely obtain service. Exercising jurisdiction under 

28 U.S.C. § 1291, we reverse. 

After receiving his right-to-sue letter from the Equal Employment Opportunity 

Commission, Mr. Palzer sought the services of attorney N. Kay Bridger-Riley, who 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

November 18, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

had recently suffered an accident that resulted in multiple broken bones. 

Ms. Bridger-Riley filed a petition in state court on Mr. Palzer’s behalf against his 

former employer, Cox Communications, on January 20, 2015. Due to the suite of 

medications she was taking as a result of her accident, however, she neglected to 

effect service on any of the Cox entities named as defendants. Because 

Ms. Bridger-Riley had previously resigned her admission to the Northern District of 

Oklahoma bar, she listed her former colleague Christopher Camp as counsel on the 

case as a contingency if the case was removed to federal court pursuant to an 

agreement between them. 

On August 24, the state court issued a “Notice of Disposition Docket” in 

connection with this case pursuant to Okla. Stat. tit. 12, § 1083, indicating that the 

court would dismiss the case without prejudice “unless counsel appears and shows 

good cause why the case should be allowed to remain on the docket.” Aplt. App. 

at 65. Mr. Camp received the notice but Ms. Bridger-Riley did not. Mr. Camp 

forwarded the notice to Ms. Bridger-Riley, after which she sent the petition and 

summons to the defendants via certified mail. Mr. Camp appeared before the 

state-court judge on September 10 and explained how Ms. Bridger-Riley’s medical 

issues led to her failure to effect service. The state court granted Mr. Palzer an 

additional 30 days to complete service. Cox was served on September 14. 

On October 2, Cox removed the action to federal court and moved to dismiss 

for failure to timely serve summons under Federal Rule of Civil Procedure 12(b)(5). 

Mr. Palzer moved to strike the motion, arguing that the state court had already found 
3 

that good cause existed at the disposition docket hearing. The district court 

determined that the state court’s decision to extend at the hearing “did not amount to 

an analysis of good cause under [Okla. Stat. tit. 12,] § 2004(I).” Aplt. App. at 67 

(brackets and internal quotation marks omitted). Accordingly, the court ordered 

Mr. Palzer to file a brief stating his good cause so it could consider in the first 

instance whether he met his burden. Mr. Palzer did so, recounting 

Ms. Bridger-Riley’s medical issues and how they obstructed her ability to timely 

serve the defendants. In a decision citing no legal authority, the district court 

concluded that Mr. Palzer failed to establish good cause for failure to timely serve 

because he “was represented during the entirety of the service period by at least one 

attorney who could have effectuated service,” referring to Mr. Camp. Aplt. App. 

at 110–11. The court reasoned that, despite the agreement between 

Ms. Bridger-Riley and Mr. Camp, Mr. Palzer did “not explain why . . . Mr. Camp 

could not have effectuated service.” Aplt. App. at 110. 

We review the district court’s dismissal of the case for failure of proper 

service, and consequently its determination of good cause, for an abuse of discretion. 

See Constien v. United States, 628 F.3d 1207, 1213 (10th Cir. 2010). “Under the 

abuse of discretion standard, a trial court’s decision will not be disturbed unless the 

appellate court has a definite and firm conviction that the lower court made a clear 

error of judgment or exceeded the bounds of permissible choice in the 

circumstances.” Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997). “When 

we apply the ‘abuse of discretion’ standard, we defer to the trial court’s judgment 
4 

because of its firsthand ability to view the witness or evidence and assess credibility 

and probative value.” Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1331 

(10th Cir. 1996) (internal quotation marks omitted). Discretion “means a sound 

discretion, that is to say, a discretion exercised not arbitrarily or willfully, but with 

regard to what is right and equitable under the circumstances and the law, and 

directed by the reason and conscience of the judge to a just result.” Rogers v. Andrus 

Transp. Servs., 502 F.3d 1147, 1152 (10th Cir. 2007) (internal quotation marks 

omitted). 

This case occurs at a curious intersection of state and federal law. Where 

service is effected prior to removal to federal court, we look to state law to determine 

if service was perfected. Wallace v. Microsoft Corp., 596 F.3d 703, 706 (10th Cir. 

2010). Section 2004 provides that, “[i]f service of process is not made upon a 

defendant within one hundred eighty (180) days after the filing of the petition and the 

plaintiff cannot show good cause why such service was not made within that period, 

the action shall be deemed dismissed . . . without prejudice.” Okla. Stat. tit. 12, 

§ 2004(I). But when “process served proves to be defective,” 28 U.S.C. § 1448 

(emphasis added), our looking to state law “does not foreclose service being effected 

in the federal district court.” Wallace, 596 F.3d at 706 (brackets and internal 

quotation marks omitted). Here, though service was perfected prior to removal, the 

district court invalidated service in finding that Mr. Palzer did not establish good 

cause. Federal Rule of Civil Procedure 4(m) thus gives “the plaintiff [90] days from 

the date defendant removes the case to federal court in which the imperfect or 
5 

defective service may be cured.” Id. at 707 (internal quotation marks omitted). 

Accordingly, the district court abused its discretion in dismissing the suit instead of 

giving Mr. Palzer the opportunity to effect service under federal law. 

We are further assured of our decision in light of the district court’s manifest 

disregard for the state court’s September 10 decision. To be sure, the district court 

may dissolve or alter prior state court orders after removal, Granny Goose Foods, 

Inc. v. Bhd. of Teamsters, 415 U.S. 423, 437 (1974), but we do not take lightly the 

notion that Cox can avoid this suit in federal court after the state court expressly 

allowed the case to proceed, whether its decision amounted to a good cause finding 

or not. Such a result is not “a just result,” see Rogers, 502 F.3d at 1152, because it is 

inequitable as it is incompatible with our discouragement of forum-shopping, see 

Hanna v. Plumer, 380 U.S. 460, 468 (1965) (observing that “discouragement of 

forum-shopping” is one of “the twin aims of the Erie rule.”). Any deference we owe 

the district court is lessened in situations such as this where there were no witnesses 

called and no credibility assessed. See Brown, 101 F.3d at 1331. To reach its 

decision without citation to any authority confirms for us that the district court “made 

a clear error of judgment [and] exceeded the bounds of permissible choice in the 

circumstances.” See Phelps, 122 F.3d at 1324. 

 
6 

 We therefore vacate the judgment of the district court and remand the case to 

the district court with instructions to allow Mr. Palzer 90 days to serve process in 

accordance with the dictates of 28 U.S.C. § 1448 and Rule 4(m). 

Entered for the Court 

Paul J. Kelly, Jr. 

Circuit Judge