### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-20754 Summary Calendar

SUSAN FLANDER, Plaintiff–Appellant
v. KFORCE, INC.; ROBYN DYCK; JP MORGAN CHASE; JIM SYKES, Defendants–Appellees

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:12-CV-00713

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * Plaintiff Susan Flander (“Flander”) appeals the district court’s dismissal of her claims against three defendants for failur e t o effect proper s e rvice and against one defendant for failure to state a claim. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND Flander sought employment as a t echnical writer with JP Morgan Chase (“JPMC”) through Kforce, I n c. ( “ Kf orce”), an employment recruiter for JPMC. U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D April 25, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-20754 Document: 00512221189 Page: 1 Date Filed: 04/25/2013No. 12-20754

After receiving an initial offer from JPMC, Flander failed a b ackground check due to an unresolved family-violence-related criminal charge filed against her. Robyn Dyck (“Dyck”) of Kforce and Jim Sykes (“Sykes”) o f J M P C’s security operations informed Flander that the offer of employment was revoked. Flander filed a Complaint a gainst four defendants—Kforce, Dyke, JPMC, and Sykes 1

— in the U.S. District Court for the Northern District of Texa s on February 21, 2012. Flander represented herself pro se, in f orma pauperis

. In h e r Complaint, Flander alleged that Dyck and Sykes violated U.S. Department of Justice Order 556-73 b y obtaining her p rior arrest r ecord. The Magistrat e J udge had Flander c omplete a questionnaire concerning her

a l legations. In response to the questionnaire, Flander m entioned addi t i o n a l claims involving civil rights violations and a conspiracy to violate her civil rights under 42 U.S.C. §§ 1983, 1985, and 1986. Fla n d e r sought $100,000 in compensation and aimed “to achieve fair employment standards for women who have been victims of family violence regardless of c onvictio n . ” I n the questionnaire, Flander claimed that Dyck and Sykes violated her civil rights under Title VII o f the Civil Rights Act of 1964. To the E qual Employment Opportunity C ommis s i o n, Flander alleged gender discrimination, contending that each of the parties “considers me to be a threat because I am a female.” The case was transferred to the U .S. District C o urt in the Southern District of Texas, H ouston Division on March 5, 2012. Flander’s Complaint was not served upon any of the f our defendants within the 1 20-day period required under the Federal Rules of Civil Procedure. Fed. R

. C iv. P. 4(m). Nonetheless,

on June 25, 2012, the Magistrate Judge i ssued an order directing Flander to

1 We note that it is unclear w hether Fland er intend ed to as s ert claim s agains t only the ind ivid uals D yck and Syk es , or w hether s he intend ed to includ e their res p e c t i v e corp orate entities as p arties in the law suit as w ell. We w ill, how ever, cons is tent w ith the dis trict court’s d eterm ination, characterize the Com p laint as bringing claim s agains t f our d ef end ants

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properly serve defendants within fourteen days. Flander failed t o serve any of the four defendants within the allotted f o urteen-day extension p eriod. On September 10, 2012, o n behalf of Flander, the M agistrate Judge o rdered the U.S. Marshals Service t o serve parties described by Flander as “Kforce-Robyn Dyck” and “JPMorgan Chase-Jim Sykes” at two separate addresses pro vi d ed by Flander. No effective service was ever made to Sykes at JPMC because he did not work or r eside at the address provided by Flander. T o date, neither JPMC

nor Sykes has be e n s e rved, and neither has made an appearance in the suit. Service of Dyck at the provided a ddress was m ade on September 17, 2012—over six months after the cause of action was fi l e d , a nd two months after the expiration of the fourteen-day extension provided by the Magistrate Judge. On November 1, 2012, the Magistrate Judge issued a Memorandum and Recommendation concluding that: (1) Kforce, J P M C , a nd Sykes w ere not properly served (and that in the alternative, Flander failed to stat e a c l a im agains t t h e m ) , ( 2 ) Flander failed to state a c laim against D yck, and (3) all of Flander’s c auses of action against the defendants should be dismissed with prejudice under 28 U.S.C. § 1915 because of their frivol o u s n a t u r e . After Flander filed numerous additional m otions and documents, the court issued an order on November 2, 2 0 1 2 , e njoining Flander f rom any additional filings not related to the Magistrate’s then

- p e n ding memorandum and recommendation. On November 1 9 , 2 0 1 2 , the district c ourt a dopted the Magistrate Judge’s memorandum and re c o m m endation and dismissed the case with prejudice. Flander timely filed her Notice of Appeal. II. ANALYSIS 1. Failure to Effect Proper Service Against Kforce, JPMC, and Sykes a. Standard of Review This Court reverses the district court’ s di s m i s s al f or failure to effect proper service only when th e district court has abused its discretion. Young v. City of

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Hous., 471 F. App’x 389, 390 ( 5 th Cir. 2012) (unpublished) (per curiam); Lindsey v. U.S. R.R. Ret.Bd. , 101 F.3d 444, 445 (5th Cir. 1996). b. Kforce The district court did not err i n dismissing Flander’s claim against Kforce for insufficient service of p rocess. The Federal Rules of Civil Procedure provide that a corporation must be served either “by delivering a c o py of the summons and of the complaint to an o f f icer, a managing or general agent, o r any other agent authorized b y a ppointment o r by law to receive service of process” or by following the dictates of applicable state law regarding service of an individual. Fed. R. Civ. P. 4(h)(1)(B), 4(e)(1); see also R . 12(b)(5). Flander never effected proper service on Kforce. Flander’s s ummons was directed to “Kforce-Robyn Dyck.” However, the two are separate parties. Based

on Flander’s summons, the U.S. Marshals Service served only Robyn Dyck, who

was not an officer or a gent authorized by appointment or law to receive service of process on behalf of Kforce. Kfor c e designated CT C orporation of Dallas, Texas as its registered agent for service i n Texas. Dyck served a s a “talent manager” at Kforce and recruited potential employees on b ehalf o f Kforce’s clients. In s u m , Kforce was never properly served, much l ess within the fourteen-day deadline specified by the district court. Pro se parties have received some leeway with regard to service deadlines and procedures. E.g. , Rochon v. Dawson , 828 F .2d 1107, 1109–10 (5th Cir. 1987) (holding that a faultless p ro se litigant will not be penalized for mistakes made by U.S. Marshals during service). However, it is wi t h i n the discretion of the court to dis m i s s a p r o s e p laintiff’s cause of action when the plaintiff’s own carelessness c ontributed to the failure of service, i d

. , o r where th e plaintiff cannot s how go od c ause for failure to meet deadlines for s ervice, Sys. Signs Supplies v. U. S. Dep’t of Justice , 903 F.2d 1011, 1013 (5th Cir. 1990) (finding no
ab u s e o f discretion in dismissal of pro se plaintiff’s case for f ailure to effect

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service, even though plaintiff made good f aith e f f o rts to serve d efendants). It follows that the district court did not abuse its discretion in di smissing Flander’s claim against Kforce for failure to effect service. c. JPMC and Sykes The district c ourt, adopting the Magistrate Judge’s memorandum and recommendation for dismissal, found that JPMC and Sykes were no t served. The Magistrate Judge reminded Flander on June 25, 2 012, of her obligation to

serve defendants and gave h er additional time to effect proper service. Despite these allowances, JPMC and Sykes have not been served to date a nd have not made an a ppearance in the suit. Thus, the district court did n ot abuse its discretion in dismissing Flander’s claims against JPMC and Sykes f or failure to serve. Fed. R. Civ. P. 4(m). 2. Failure to State a Claim Against Dyck a. Standard of Review Federal Rule of Civil Procedure 12(b)(6) authori z e s t h e dismissal of a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P

. 12(b)(6). W e r e vi ew such a dismissal de novo. Lindquist v . City of Pasadena, Tex. , 525 F.3d 383, 386 (5th Cir. 2008). All well-pleaded facts must be accepted as true and sho u l d b e viewed “in the light most favorable to the plaintiff.” Gines v . D.R. H orton, Inc. , 699 F.3d 812, 816 (5th Cir. 2 012) (citing In

re Katrina Canal Brea c h e s Litig. , 495 F.3d 191, 205 (5th C ir. 2007)). To withstand a motion to dismiss, a complaint must contain enough facts to state

a claim to relief that is plausible on its f ace. In re Katrina Canal Breaches Litig. , 495 F.3d at 205. b. Discussion Flander’s cause of action against Dyck was c orrectly dismissed f or failure to state a claim upon which relief may be granted. Dyck was served well after the close of the initial 120-day window for service and the fourteen-day deadline
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e x t e n s i o n for service provided by the Magistrate Judge. However, the district

c ourt did not dismiss based on failure to effect proper service, but instea d dismissed Flander’s cause of action against D yck for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). We do the same. Flander’s C omplaint s tates only one claim: that Dyck vi olated U.S. Department of Ju s t i ce (“DOJ”) Order 556-73 by obtaining and reviewing Flander’s criminal history. However, t his DOJ O rder merely provides procedures for subjects of F B I I d e ntification Records to obtain c opies of their own records, and has n o application to r ecords obtained by o thers f or the purpose of employment screening. 28 C .F.R. § 16.30. Moreover, Flander has not alleged a meaningful connection between Dyck (employed by Kforce) and JPMC’s review of Flander’s background or even that Dyck ever accessed the background check or knew the precise reason Flander failed it. In responding t o the questionnaire from the Magi s t rate Judge, Flander made several o ther claims under federal statutes and acts. Under e ach of these theories of recovery, Flander fails to state a claim upon which r elief m a y be granted, as detailed in the M agi strate Judge’s memorandum and recommendation and adopted in full by the di strict court in dismissing the case. The first purported violation i s of 42 U.S.C. § 19 8 3

. As noted by the Magistrate Judge, this statute applies only t o state actors. 42 U.S.C. § 1983; Doe

v. Covington Cnty. Sch. Dist. , 6 75 F.3d 849, 886 (5th Cir. 2012) (en banc) (Weiner J., dissenting). Flander cannot establish that D yck, a talent recruiter working for a private company, was a state actor. Flander also contends that Dyck e ngaged i n a c onspiracy to violate her civil rights under 42 U .S.C. § 1985. However, Flander h as alleged n o facts to demonstrate that Dyck entered into a conspiracy against Flander, much less one based upon her gender. I f Flander m eans to allege that defendants discriminated against her because of her p a st criminal charges, this argument
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fails because under Section 1985 “[a] p laintiff must show membership in some group with inherited or immutable characteristics

. . . or that the discrimination resulted from the plaintiff’s political beliefs or associations.” Galloway v. Louisiana , 817 F.2d 1154, 1159 (5th C i r . 1 9 8 7 )

. Flander filed a related claim alleging Dyck had knowledge of and neglected to pre vent a conspiracy against her, in violation o f 42 U .S.C. § 1986. In the absence o f a vi ab l e claim under § 1985, no claim under § 1986 will stand. Lockett v. New Orleans City , 607 F.3d 992, 1002 ( 5th Cir. 2010) (noting a viable claim under § 1 986 requires a s imilarly viable claim under Section 1985). Flander also contends that Dyck engaged in sexual discrimination against her in violation of Title VII of the Civil Rights Act of 1964. H o w e v e r , F lander alleges no facts demonstrating that Dyck’s actions were motivated by Flander’s gender. Finally, Flander’s contention that Dyck retaliated against her also f ails to state a claim by failing to demonstrate that Flander engaged in a protected activity. Kforce re q u e sted that this Court award damages and costs a nd bar Flander from filin g further actions absent express p ermission from the Fifth Circuit. While Flander filed two other related s uits on the same day as the present c laim, all stemmed from the single incident of her d enial of e mployment. We decline to bar Flander from filing additional suits an d d e c l ine Kforce’s request for costs and fees. I II. CONCLUSION For the reasons discussed above, we AFFIRM the district court’s dismissal of the plaintiff’s claims.

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