United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Magistrate Judge Janet F.
King's Final Report and Recommendation 
(“R&R”), recommending that Defendant J.B.
Hunt Transport, Inc.'s (“Defendant”) Motion
to Dismiss  be granted and that this action be dismissed
January 4, 2017, Plaintiff Michael Ogidi-Gbegbaje
(“Plaintiff”) filed his Complaint , 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.” (). 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).
March 16, 2017, a deputy United States Marshal personally
delivered the Complaint and Summons to Mr. Bean's
receptionist. (). 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  (“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).
Motion to Dismiss for Insufficient Service of
“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
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.
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.
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.
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,
Magistrate Judge's ...