United States District Court, S.D. Georgia, Augusta Division
JAMES D. RILES, Plaintiff,
AUGUSTA-RICHMOND COUNTY COMMISSION, ROBERT LEVINE, JOANIE SMITH, and RONALD HOUCK, Defendants.
RANDAL HALL, CHIEF JUDGE
the Court in the captioned matter is a motion to dismiss
filed by Defendant Robert Levine. The motion is identical to
the motions to dismiss filed by the other individual
defendants, Defendants Joanie Smith and Ronald Houck, except
that Defendant Levine has asserted an additional ground. More
particularly, like his co-defendants, Defendant Levine moves
to dismiss any claims under Title I of the Civil Rights Act
of 1991, which is codified at 42 U.S.C. § 1981a, and 42
U.S.C. § 1981. Also like his co-defendants, Defendant
Levine seeks dismissal of the official capacity claims
against him as duplicative of the claims against the County,
and he seeks dismissal of any claims against him in his
individual capacity. Finally, Defendant Levine adds that
service of process against him was insufficient and untimely.
The motion has been briefed and is ripe for consideration.
Court incorporates herein the statement of facts and
conclusions of law in its Order of August 21, 2017 to the
extent Defendant Levine's motion to dismiss is
duplicative of his co-defendants' motions. Upon those
facts and conclusions, the Court rules as follows: (1)
Plaintiff's claims against Defendant Levine under 42
U.S.C. § 1981a and 42 U.S.C. § 1981 are dismissed;
(2) Plaintiff's claims against Defendant Levine in his
individual capacity under Title VII are dismissed, but the
individual capacity claims against him under 42 U.S.C. §
1983 will stand; and (3.) Plaintiff's claims against
Defendant Levine in his official capacity under Title VII and
§ 1983 are dismissed.
Court now turns to Defendant Levine's motion to dismiss
based upon a lack of personal jurisdiction. Plaintiff filed
the instant action on December 27, 2016. Defendant Levine
explains that he now resides in New Haven, Connecticut, and
that on May 12, 2017, copies of the Summons and Complaint
were simply left on the front door step of this residence.
time of filing the motion to dismiss, no return of service or
affidavit of service had been entered in the record of the
case with respect to Defendant Levine. However, an hour and
seventeen minutes after the motion to dismiss was filed,
Plaintiff filed a Return of Service. The Return of Service
indicates that Defendant Levine identified himself through
the front door of his residence and asked the process server
to leave the process in his mailbox. The process server left
the process on Defendant Levine's front door
Rule of Civil Procedure 4 provides that service of process
may be made upon an individual within the United States by
delivering a copy of the summons and complaint to the
individual personally or by leaving a copy of each at the
individual's dwelling with someone of suitable age and
discretion who resides there. Fed.R.Civ.P. 4(e). Here,
Defendant Levine was identified and personally served at his
residence. Importantly, "a face-to-face
encounter and in-hand delivery are not always necessary for
proper service of process." World Entm't Inc. v.
Brown, 487 F.App'x 758, 761 (3d Cir. 2 012)
("Leaving papers in the defendant's physical
proximity is usually sufficient if (1) defendant actively
evades service, and (2) there is clear evidence that the
defendant actually received the papers at issue when
allegedly served."); Hillcrest Bank, N.A. v.
Anzo, 2011 WL 3299756, *3 (D. Kan. Aug. 1, 2011)
(finding service sufficient when process server verified
defendant's identity at his residence but defendant
refused to open the door); Villanova v. Solow, 1998
WL 643686, *2 (E.D. Penn. Sept. 18, 1998) (finding service
sufficient where deputy constable spoke with defendant
through his front door, defendant refused to open the door,
and constable announced he was putting the summons and
complaint through the mail slot in the door). Upon
consideration, the Court finds that service in this case in
the manner described was sufficient.
Levine also complains of the untimeliness of service since he
was not served within 90 days of filing the complaint.
See Fed.R.Civ.P. 4 (m) . However, the court may
extend the time for service upon good cause shown.
Id. Here, Plaintiff argues that he needed more time
to locate Defendant I Levine who had moved out of state. The
Court finds that the relocation of Defendant Levine is
sufficient cause to warrant the modest extension of time to
serve process in this case. Accordingly, Defendant
Levine's motion to dismiss based upon insufficient
service of process is denied.
the foregoing, Defendant Levine's motion to dismiss is
GRANTED IN PART and DENIED IN
PART. Plaintiff's claims against Defendant
Levine under 42 U.S.C. § 1981a and 42 U.S.C. § 1981
are dismissed; Plaintiff's claims against Defendant
Levine in his individual capacity under Title VII are
dismissed; and Plaintiff's claims against Defendant
Levine in his official capacity under Title VII and §
1983 are dismissed. In all other relevant respects, Defendant
Levine's motion to dismiss is denied. The Court hereby
exercises its discretion not to award attorney's fees and
costs associated with filing the motion to dismiss to
Defendant Levine as requested.
 Title I of the Civil Rights Act of
1991 is codified at 42 U.S.C. § 1981a. It is unclear
from the complaint whether Plaintiff was referring to §
1981a when he listed "Title I of the Civil Rights Act of
1991 - 42 U.S.C. § 1981" or whether he was
referring to both § 1981a and § 1981. See
Olmstead v. Taco Bell Corp., 141 F.3d 1457, 1462
(11th Cir. 1998) (acknowledging the potential for
confusion in differentiating between the amendments to Title
VII embodied in § 1981a and the cause of action created
in § 1981). Defendants have interpreted the language to
state claims under § 1981a and § 1981. For his
part, Plaintiff all but concedes that he does not have an
independent claim under either statute, stating that his
complaint is "based primarily upon Defendants'
collective violations of Title VII and the Fourteenth
Amendment." (Pl.'s Resp. in Opp'n to Mots, to
Dismiss, Doc. 23, at 2.)
 The process server states that
Defendant Levine identified himself but refused to open the
door." (Doc. 22.) The process server further attests
that he drove by the house shortly after leaving the process
to find it had been removed. (Id.).
 Defendant Levine has presented no
argument or evidence to dispute the circumstances relayed in
the Return of Service or to contest that the Connecticut ...