Ogidi-Gbegbaje v. J. B. Hunt Transport

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Magistrate Judge Janet F. King's Final Report and Recommendation [12] (“R&R”), recommending that Defendant J.B. Hunt Transport, Inc.'s (“Defendant”) Motion to Dismiss [10] be granted and that this action be dismissed without prejudice.

         I. BACKGROUND

         On January 4, 2017, Plaintiff Michael Ogidi-Gbegbaje (“Plaintiff”) filed his Complaint [3], asserting a Title VII discrimination claim against Defendant, a Georgia corporation. On January 12, 2017, Plaintiff returned service of process forms to the Clerk of Court. Plaintiff stated, in the forms, that Defendant could be served by delivering the Complaint and Summons to “Brenton S. Bean, Attorney, Hawkins, Parnell, Young LLP, 303 Peachtree St. NE Suite 4000, Atlanta, GA 30308-3243.” ([9]). Mr. Bean, an attorney, had previously “filed a position statement with the Equal Employment Opportunity Commission on behalf of [Defendant], in response to a Charge of Discrimination filed by [Plaintiff].” ([11.1] at 2).

         On March 16, 2017, a deputy United States Marshal personally delivered the Complaint and Summons to Mr. Bean's receptionist. ([9]). On April 4, 2017, Defendant filed its Motion to Dismiss for insufficient service of process. On June 14, 2017, the Magistrate Judge issued her R&R, recommending that Defendant's Motion to Dismiss be granted and that this action be dismissed without prejudice. On July 3, 2017, Plaintiff filed his Opposition to Defendants [sic] Motion to Dismiss [15] (“Opposition Brief”), arguing that this action should not be dismissed because Mr. Bean is Defendant's attorney and Defendant has “actual notice” of Plaintiff's Complaint. (Opposition at 1).

         II. LEGAL STANDARDS

         A. Motion to Dismiss for Insufficient Service of Process

          “A plaintiff is responsible for serving the defendant with both a summons and the complaint within the time permitted under Rule 4(m).” Anderson v. Osh Kosh B'Gosh, 255 Fed. App'x. 345, 347 (11th Cir. 2006). Rule 4(m) provides:

Time Limit for Service. If a defendant is not served within 90 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); see Lepone-Dempsey v. Carroll Cnty. Comm'rs, 476 F.3d 1277, 1281 (11th Cir. 2007). “Good cause” for insufficient service exists “only when some outside factor, such as reliance on faulty advice, rather than inadvertence or negligence, prevented service.” Lepone-Dempsey, 476 F.3d. at 1281. “Even in the absence of good cause, a district court has the discretion to extend the time for service of process.” Id. “Relief may be justified, for example, if the applicable statute of limitations would bar the re-filed action, or if the defendant is evading service or conceals a defect in attempted service.” Id. at 1282.

         Rule 4(h) requires plaintiffs to serve a corporate defendant in one of two ways. First, the defendant may be served “by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process.” Fed.R.Civ.P. 4(h)(1)(B); see Dyer v. Wal-Mart Stores, Inc., 318 F. App'x 843, 844 (11th Cir. 2009). Second, “a plaintiff may use any method of service allowed in the state where the district court is located or where service is made.” Dyer, 318 F. App'x at 844. “Under Georgia's Civil Practice Act, service of process must be made on a corporation by personally serving ‘the president or other officer of such corporation or foreign corporation, managing agent thereof, or a registered agent thereof.'” Hunt v. Nationstar Mortg., LLC, 684 F. App'x 938, 940-41 (11th Cir. 2017) (quoting O.C.G.A. § 9-11-4(e)(1)(A)); see Clarke v. LNV Corp., No. 3:14-CV-139-TCB-RGV, 2015 WL 11439083, at *4 (N.D.Ga. Apr. 6, 2015). “However, if service on the listed agents cannot be had, the Georgia secretary of state is deemed an agent of the corporation for purposes of service of process.” Hunt, 684 F. App'x at 941. “To perfect service on the secretary of state, the plaintiff must deliver a copy of the process to the secretary of state or other agent designed by the secretary of state along with a copy of the affidavit to be submitted to the court pursuant to the Civil Practice Act.” Id.

         “A Rule 12(b)(5) motion challenging sufficiency of service must be specific and must point out in what manner the plaintiff has failed to satisfy the requirements of the service provision utilized.” Moore v. McCalla Raymer, LLC, 916 F.Supp.2d 1332, 1339 (N.D.Ga. 2013). If the Rule 12(b)(5) motion meets these requirements, “the serving party bears the burden of proving its validity or good cause for failure to effect timely service.” Sys. Signs Supplies v. U.S. Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990); see Lowdon PTY Ltd. v. Westminster Ceramics, LLC, 534 F.Supp.2d 1354, 1360 (N.D.Ga. 2008). “If the plaintiff presents countering evidence, the court must construe all reasonable inferences in favor of the plaintiff, ” id., and “the burden shifts back to the defendant to bring strong and convincing evidence of insufficient process, ” Hollander v. Wolf, 2009 WL 3336012, at *3 (S.D. Fla. Oct. 14, 2009); see Fru Veg Marketing, Inc. v. Vegfruitworld Corp., 896 F.Supp.2d 1175, 1182 (S.D. Fla. 2012).

         “Service of process that is not in ‘substantial compliance' with the requirements of the Federal Rules is ineffective to confer personal jurisdiction over the defendant, even when a defendant has actual notice of the filing of the suit.” Abele v. City of Brooksville, Fla., 273 Fed. App'x. 809, 811 (11th Cir. 2008); see Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990) (“Service of process is a jurisdictional requirement: a court lacks jurisdiction over the person of a defendant when that defendant has not been served.”). A litigant's pro se status does “not excuse mistakes he makes regarding procedural rules, ” including rules regarding service of process. Nelson v. Barden, 145 Fed. App'x. 303, 311 (11th Cir. 2005) (explaining that the court “never suggested that procedural rules in ordinary civil litigation shall be interpreted so as to excuse mistakes by those who proceed without counsel, ” because “experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law”); see Valiente v. Bank of Am., No. 1:16-CV-1553-WSD, 2017 WL 65245, at *1-2 (N.D.Ga. Jan. 6, 2017).

         B. Magistrate Judge's ...