United States District Court, N.D. Georgia, Atlanta Division
FINAL REPORT AND RECOMMENDATION
Catherine M. Salinas United States Magistrate Judge
matter is before the Court on Defendant City of
Porterdale's Motion to Dismiss, or in the Alternative,
Motion to Compel Discovery and Request for Sanctions seeking,
among other things, that the case be dismissed for
Plaintiff's failure to effect service of process. [Doc.
8]. For the reasons discussed below, I recommend that the
motion to dismiss be granted and that the claims against
Defendant be dismissed without prejudice for failure to
effect service of process.
matter arises in connection with Plaintiff James
Fennell's termination from his employment as a police
officer with Defendant in August 2016. Plaintiff, who is
proceeding pro se, alleges that the reason given for his
termination was the fact that Plaintiff reported to work
under the influence of alcohol. [Doc. 1
(“Compl.”) at 3, 7]. Plaintiff alleges that other
police officers who engaged in similar conduct were not
reprimanded or were permitted to voluntarily resign so as not
to adversely impact their ability to find new employment.
[Id. at 3, 7-8]. Plaintiff claims that he was
terminated because of his race. [Id. at 2, 7].
initiated the instant lawsuit on June 20, 2017, alleging a
claim of race discrimination in violation of Title VII of the
Civil Rights Act of 1964. [Doc. 1]. Although Plaintiff did
not serve Defendant with the Complaint, Defendant filed an
answer on July 11, 2017. [Doc. 2]. Defendant also filed its
portion of the Preliminary Report and Discovery Plan and
served discovery. [Docs. 5, 7]. On October 26, 2017,
Defendant filed the pending motion arguing, among other
things, that Plaintiff's Complaint should be dismissed
because Defendant has not been served with process. [Doc. 8].
Alternatively, Defendant argues that Plaintiff should be
compelled to respond to discovery and be sanctioned.
[Id.]. Plaintiff has not submitted a response to the
motion, and the time for doing so has now passed. Under Local
Rule 7.1(B), a party's failure to file a response to a
motion indicates that there is no opposition to the motion.
See LR 7.1(B), NDGa. Therefore, Defendant's
pending motion to dismiss is deemed unopposed. Id.
An unopposed motion, however, does not mean that the moving
party automatically prevails; rather, the Court is still
required to consider the merits of the motion. See
Giummo v. Olsen, 701 Fed.Appx. 922, 925 (11th
Cir. 2017). Accordingly, I have reviewed the content of
Plaintiff's Complaint as well as the merits of the
arguments raised in Defendant's motion to dismiss. The
motion is now ripe for consideration.
Federal Rules of Civil Procedure specify that the plaintiff
is responsible for having the summons and complaint served
within the time allowed by Rule 4(m). See
Fed.R.Civ.P. 4(c)(1). Rule 4(m) states, in relevant part:
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). “When service of process is
challenged, the burden of establishing its validity falls
upon the party obligated to make the service.”
Nickens v. Jarvis & Cohen, Inc., Civ. No.
1:14-CV-1631-TWT, 2015 WL 630446, at *2 (N.D.Ga. Feb. 12,
2015) (internal citations omitted). A litigant's pro se
status does not relieve him of the obligation to comply with
the procedural rules of the court. See Albra v. Advan,
Inc., 490 F.3d 826, 829 (11th Cir. 2007).
of process is a jurisdictional requirement: a court lacks
jurisdiction over the person of a defendant when that
defendant has not been served.” Pardazi v.
Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990).
Under Rule 12 of the Federal Rules of Civil Procedure, a
defendant must raise any challenge to the sufficiency of
service of process in the first response to the
plaintiff's complaint; i.e., the defendant must include
the defense in either its motion to dismiss, or if no motion
is filed, then the defense must be included in the
defendant's answer. See Fed. R. Civ. P. 12(b),
(h); see also Hemispherx Biopharma, Inc. v. Johannesburg
Consol. Inv., 553 F.3d 1351, 1360 (11th Cir. 2008).
evident from the docket that, to date, Plaintiff has not
filed a return of service to indicate that Defendant was
served with the Complaint and summons. Defendant has not
waived the defense of insufficient service of process,
because it raised the defense in its answer [Doc. 2 at 3] and
subsequently filed its motion to dismiss based on
Plaintiff's failure to effect service of process [Doc.
8]. See Fed.R.Civ.P. 12(b), (h); Walker v.
Firestone, Civ. No. 2:07-CV-0105-RWS, 2008 WL 2744391,
at *3 n.2 (N.D.Ga. July 11, 2008) (granting motion to dismiss
for insufficient service of process where defendant moved to
dismiss shortly after filing answer that preserved the
defense); Myers v. Citigroup, Inc., Civ. No.
1:14-CV-00968-ELR-ECS, 2015 WL 12856451, at *10 (N.D.Ga. Feb.
3, 2015) (finding that defendant did not waive the defense of
insufficient service of process where it raised the defense
in its answer). Some courts have refused to dismiss cases on
the basis of insufficient service of process where the
defendant actively engaged in discovery and the delay in
asserting the defense would prejudice the plaintiff. See,
e.g., Rent v. Swift Transp. Co., Inc., 185
F.R.D. 693, 701 (M.D. Ga. 1998). But that is not the case
here. Although Defendant waited three months after answering
to assert the defense by motion, there is no indication that
Plaintiff participated in the case during that period. I find
nothing inequitable about permitting Defendant to move to
dismiss on the basis of insufficient service of process
roughly three months after filing its answer, especially in
light of the fact that Plaintiff did not make any attempt to
either perfect service or oppose the motion to dismiss.
has failed to serve Defendant with process within the time
limits set forth in Rule 4(m). More than 90 days have passed
since Plaintiff filed the Complaint on June 20, 2017. There
is no indication that Plaintiff attempted to serve Defendant
or that Defendant waived service as permitted under Rule
4(d). Moreover, in failing to respond to Defendant's
motion, Plaintiff has failed to provide any explanation as to
why he failed to properly serve Defendant.
the circumstances presented in this case, Plaintiff's
status as a pro se litigant, standing alone, does not warrant
an extension of time to perfect service. See Nelson v.
Barden, 145 Fed.Appx. 303, 311 n.10 (11th Cir. 2005)
(unpublished) (dismissing pro se litigant's case for
failure to effect timely service of process because “a
[party's] pro se status in civil litigation
generally will not excuse mistakes he makes regarding
procedural rules”); see also Wayne v. Jarvis,
197 F.3d 1098, 1104 (11th Cir. 1999) (holding that liberal
construction of the pleading requirements for pro se
litigants does not equate with liberal deadlines).
on these facts, the pending motion to dismiss for failure to
effect service of process should be granted. See Anderson
v. Osh Kosh B'Gosh, 255 Fed.Appx. 345, 348 (11th
Cir. 2006) (“[W]e conclude that the district court did
not commit reversible error in sua sponte dismissing
[plaintiff's] complaint for failure to effect timely
service of process, pursuant to Rule 4(m).”);
Ojelade v. Coleman, 258 Fed.Appx. 257, 258 (11th
Cir. 2007) (“[T]he district court did not abuse its