United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on the Defendants' Joint Motion to Dismiss the Complaint for insufficient service of process, and failure to state a claim against Defendants Gwinnett County School District ("GCSD"), Gwinnett County Board of Education ("GCBE"), and J. Alvin Wilbanks, the Superintendent of the GCSD ("Wilbanks") .
On November 8, 2013, Plaintiff Dorothy Aaron ("Plaintiff") filed a Complaint against GCSD in the Superior Court of Gwinnett County, Georgia, in which she alleged that GCSD was liable for personal injuries sustained by her daughter in two school bus accidents that occurred on November 11, 2011, and November 14, 2011. On January 9, 2014, Plaintiff amended her Complaint in the state court action to add GCBE and Wilbanks as additional defendants, and asserted claims, against GCSD, GCBE and Wilbanks, under 42 U.S.C. § 1983, 42 U.S.C. § 1985, Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.), Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), Title II of the Americans with Disabilities Act (42 U.S.C. § 12131 et seq.), the Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq.), Title IX of the Civil Rights Act (20 U.S.C. § 1681, et seq.) and Section 504 of the Rehabilitation Act (29 U.S.C. § 794.).
Plaintiff contends that her daughter is a special needs child, who was not restrained in a seat belt at the time of the accidents, and that Defendants are responsible for her daughter's injuries because they allegedly failed to enact policies or training programs to accommodate her daughter's disability.
On February 11, 2014, the Defendants filed a Notice of Removal, and removed the state court action to this Court. On February 18, 2014, Defendants moved to dismiss the Plaintiff's Complaint for insufficient service of process, and for failure to state a claim upon which relief can be granted. Defendants argue that Plaintiff failed to make proper service on GCSD because Plaintiff served the Amended Complaint on the clerk of the GCSD's Chief Executive Officer, but in doing so did not include a summons with the Amended Complaint. Defendants also argue that Plaintiff failed to make proper service on GCBE and Wilbanks because she did not serve them with the summons or the Amended Complaint.
On March 31, 2014, Plaintiff filed a document entitled "Rep[ly] to the Defendants' Informal Answer and Pre-requests [sic] Motion to Amend her Complaint due to Improper Service, " in which she acknowledged her failure to serve the Defendants, but stated that she requested the Defendants to waive service of a summons . To date, Plaintiff has not served any Defendant in this action, and no Defendant has waived service of a summons.
A. Legal Standard
Rule 12(b)(4) and (5) of the Federal Rules of Civil Procedure permit dismissal of a complaint for insufficient process and insufficient service of process, respectively. Fed.R.Civ.P. 12(b)(4), (5).
The requirements for process and service of process are provided for in Federal Rule of Civil Procedure 4. Rule 4(c) requires that a summons must be served with a copy of the complaint, and the plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m). Fed.R.Civ.P. 4(c)(1). Rule 4(m) states:
If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff- must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). When a case is removed from state court, courts have generally held that the 120-day period for perfecting service of process begins at the time of removal. See, e.g., Buckley v. Bayrock Mortg. Corp., No. 1:09-CV-1387 , 2010 WL 476673, at *4 n.6 (N.D.Ga. Feb. 5, 2010); Igbinigie v. Wells Fargo Bank, N.A., No. 3:08-CV-58, 2008 WL 4862597, at *2 (M.D. Ga. Nov. 10, 2008). Where service was ...