United States District Court, N.D. Georgia, Atlanta Division
STEPHANIE KUYKENDALL, HAILEY LYTLE, ROWAN McCOY, ZOE WALKER, JASMINE DURDEN, and JACHURA LAWTON, Petitioners,
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
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  (“Motion to
Dismiss”) and Respondent Teri Galardi's Motion to
Quash Service of Summons  (“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  (“Motion to
Strike”) and Out-of-Time Motion for Leave to File
Memorandum of Law in Opposition to Respondents' Motion to
Dismiss  (“Motion for Leave to File Out-of-Time
February 7, 2017, Petitioners filed their Complaint to Compel
Arbitration and for Specific Performance  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.
( ¶¶ 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. ( 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.” ( ¶¶
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,  and on May 30, 2017, Petitioners
filed their Motion for Leave to File Out-of-Time Response.
Respondents' Motion to Dismiss for Insufficient
Service of Process
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
Fed. R. Civ. P. 4(m); see Lepone-Dempsey v. Carroll Cnty.
Comm'rs, 476 F.3d 1277, 1281 (11th Cir. 2007).
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).
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 ...