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Kuykendall v. Trop, Inc.

United States District Court, N.D. Georgia, Atlanta Division

November 9, 2017

STEPHANIE KUYKENDALL, HAILEY LYTLE, ROWAN McCOY, ZOE WALKER, JASMINE DURDEN, and JACHURA LAWTON, Petitioners,
v.
TROP, INC. d/b/a PINK PONY, PONY TAIL, INC. d/b/a CLUB ONYX, TERI L. GALARDI, Individually and in her capacities of President and Owner of Trop, Inc. and President and CEO of Pony Tail, Inc., MIKE KAP, Individually, RICK HAYES, Individually, and JEFF JONES, Individually, Respondents.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR., UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Respondents' Mike Kap, Rick Hayes, Jeff Jones, Trop, Inc. and Pony Tail, Inc. (collectively, the “Respondents”) Motion to Dismiss for Insufficiency of Process [12] (“Motion to Dismiss”) and Respondent Teri Galardi's Motion to Quash Service of Summons [13] (“Motion to Quash”). Also before the Court is Petitioners' Stephanie Kuykendall, Hailey Lytle, Rowan McCoy, Zoe Walker, Jasmine Durden, and Jachura Lawton (“Petitioners”) Motion to Strike Respondent Galardi's Motion to Quash Service [14] (“Motion to Strike”) and Out-of-Time Motion for Leave to File Memorandum of Law in Opposition to Respondents' Motion to Dismiss [22] (“Motion for Leave to File Out-of-Time Response”).

         I. BACKGROUND

         On February 7, 2017, Petitioners filed their Complaint to Compel Arbitration and for Specific Performance [1] alleging violations of 9 U.S.C. § 4 for Respondents' alleged failure and refusal to arbitrate claims arising under the Fair Labor Standard Act (“FLSA”) in accordance with the terms of the parties' arbitration agreement. ([1] ¶¶ 23-24). Petitioners argue that Respondents misclassified them as “independent contractors, ” when they should have been treated as “employees”-thereby failing to pay them the minimum wages specified by the FLSA. ([1] at 7). Petitioners also seek an order “requiring specific performance of Respondents' obligations under the arbitration agreement, including but not limited to paying all AAA administrative fees and arbitrator compensation.” ([1] ¶¶ 25-28).

         On May 12, 2017, Respondents Mike Kap, Rick Hayes, Jeff Jones, Trop, Inc. and Pony Tail, Inc. filed their Motion to Dismiss pursuant to Rule 4(m) of the Federal Rules of Civil Procedure arguing that Petitioners failed to perfect service of process within 90 days of filing the Complaint. On May 15, 2017, Respondent Teri Galardi filed her Motion to Quash Service of Summons claiming that it was improper to try to serve her during a deposition in which she was participating. She claims the case in which the deposition was taken was a matter unrelated to this action. On May 18, 2017, Petitioners filed their Motion to Strike, [1] and on May 30, 2017, Petitioners filed their Motion for Leave to File Out-of-Time Response.

         II. DISCUSSION

         A. Respondents' Motion to Dismiss for Insufficient Service of Process

         1. Legal Standard[2]

         “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.Appx.. 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).

         Under Rule 4(e), service of process may be effected on an individual in one of four ways: first, by serving the defendant with process in accordance with Georgia law; second, by delivering to the defendant personally a copy of the summons and complaint; third, by leaving a copy of each at the defendant's “dwelling or usual place of abode, ” under certain proscribed conditions; or finally, by leaving a copy of each with an “agent authorized by appointment or by law to receive service of process.” Fed.R.Civ.P. 4(e). Georgia law regarding personal service of process mirrors the federal rules:

Service shall be made by delivering a copy of the summons attached to a copy of the complaint . . . to the defendant personally, or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or law to receive service of process.

O.C.G.A. § 9-11-4(e)(7). Under Georgia law, “[m]ailing a copy of [a] petition or complaint does not [ordinarily] constitute service of process.” Camp v. Coweta Cnty., 625 S.E.2d 759, 761, n.2 (Ga. 2006).

         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 Fed.Appx. 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 Fed.Appx. 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 Fed.Appx. 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 ...


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