United States District Court, N.D. Georgia, Atlanta Division
ORDER AND NON-FINAL REPORT AND RECOMMENDATION ON A
MOTION TO DISMISS
S. ANAND UNITED STATES MAGISTRATE JUDGE
Jemima Peddie, proceeding pro se, filed this action
on November 3, 2017. In her Complaint , Plaintiff alleges
that Defendant discriminated against her on the basis of her
race (African-American), and unlawfully retaliated against
her, in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. §§ 2000e,
et seq. The action is now before the Court on
Defendant's Motion to Dismiss . Defendant moves to
dismiss Plaintiff's Complaint without prejudice under
Rules 4(m) and 12(b)(5) of the Federal Rules of Civil
Procedure. For the reasons discussed below, the undersigned
RECOMMENDS that Defendant's Motion to
Dismiss  be DENIED. The Court
ORDERS that the deadline for Plaintiff to
serve Defendant is extended nunc pro tunc through
March 8, 2018.
initiated this action by filing an Application for Leave to
Proceed in District Court without Prepaying Fees or Costs 
on November 3, 2017. On November 8, 2017, the undersigned
recommended that Plaintiff's Application  be denied.
See Report and Recommendation . Plaintiff paid
the filing fee and filed her Complaint  on November 15,
2017. Thereafter, on December 19, 2017, the District Judge
entered an Order  finding the Report and Recommendation
 moot, and denying the Application  as moot.
filed a Return of Service  on November 20, 2017. The
Return of Service is executed by “Darren B. Harris,
Sr., Process Server” and indicates that Defendant was
served on November 17, 2017, by means of service on
“Janice Valavez (Mail Room Coordinator), ” who,
according to the Return of Service, is “designated by
law to accept service of process” on behalf of
Defendant. See Return of Service  at 1. Defendant
filed its Answer  on December 8, 2017. In the Answer,
among other defenses, Defendant asserted that the Complaint
failed for insufficiency of service of process. See
Answer  at 6.
January 5, 2018 and January 8, 2018, the parties filed their
Preliminary Reports and Discovery Plans  separately,
as permitted under the Local Rules when one party is
representing herself pro se. See LR 16.2, NDGa. The
parties indicated that they conducted the Rule 26(f)
conference on January 3, 2018. See Defendant's
Preliminary Report and Discovery Plan  at 8;
Plaintiff's Preliminary Report and Discovery Plan  at
6. On January 9, 2018, the Court entered a Scheduling Order
 setting the end date for discovery as May 7, 2018.
See Scheduling Order  at 1.
filed its Motion to Dismiss  on February 21, 2018.
Plaintiff filed a Response  (“Pl. Br.”) in
opposition to the Motion to Dismiss on March 6, 2018, and
Defendant filed a Reply  (“Def. Reply Br.”)
in further support of its Motion to Dismiss on March 12,
March 13, 2018, Plaintiff filed a second return of service,
entitled “Sheriff's Entry of Service” .
The Sheriff's Entry indicates that Defendant was again
served on March 8, 2018, by a Deputy Sheriff of Gwinnett
County, Georgia, by leaving a copy of “the within
action and summons” with “Alisha Smith, in charge
of the office and place of doing business of said Corporation
in this County.” See Sheriff's Entry .
The name and address of the party to be served is listed as
“Corporation Service Company (In care of Brooks Smith),
40 Technology Parkway South Suite 300, Norcross, Georgia
30092.” See id.
Standard on a Motion to Dismiss for Insufficient Service
of process is a jurisdictional requirement: a court lacks
jurisdiction over the person of a defendant when the
defendant has not been served.” Pardazi v. Cullman
Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990). Thus,
for that reason, whenever a court finds that a defendant has
not been properly served under the Federal Rules of Civil
Procedure, it is “improper for the district court to .
. . reach[ ] the merits in th[e] case and to . . . issue[ ] a
dismissal with prejudice.” Jackson v. Warden, FCC
Coleman-USP, 259 Fed.Appx. 181, 183 (11th Cir. 2007);
see also Pelmore v. Pinestate Mortg. Corp.,
No. 1:09-CV-2313-TWT, 2010 WL 520767, at *5 (N.D.Ga. Feb. 8,
2010) (Thrash, J.) (quoting Jackson, 259 Fed.Appx.
at 183); Innomed Tech., Inc. v. Worldwide Med.
Tech., Inc., 267 F.Supp.2d 1171, 1173 (M.D. Fla. 2003)
(“[a] court without personal jurisdiction is powerless
to take further action”) (citing, inter alia,
Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1214 n.6
(11th Cir. 1999)).
of process in the federal courts is generally governed by
Rule 4 of the Federal Rules of Civil Procedure, which
provides, in relevant part:
A summons must be served with a copy of the complaint. The
plaintiff is responsible for having the summons and complaint
served within the time allowed by Rule 4(m) and must furnish