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Peddie v. Incomm

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

March 22, 2018

JEMIMA PEDDIE, Plaintiffs,
v.
INCOMM, Defendant.

          ORDER AND NON-FINAL REPORT AND RECOMMENDATION ON A MOTION TO DISMISS

          JUSTIN S. ANAND UNITED STATES MAGISTRATE JUDGE

         Plaintiff Jemima Peddie, proceeding pro se, filed this action on November 3, 2017. In her Complaint [4], 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 [21]. 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 [21] be DENIED. The Court ORDERS that the deadline for Plaintiff to serve Defendant is extended nunc pro tunc through March 8, 2018.

         I. BACKGROUND

         Plaintiff initiated this action by filing an Application for Leave to Proceed in District Court without Prepaying Fees or Costs [1] on November 3, 2017. On November 8, 2017, the undersigned recommended that Plaintiff's Application [1] be denied. See Report and Recommendation [2]. Plaintiff paid the filing fee and filed her Complaint [4] on November 15, 2017. Thereafter, on December 19, 2017, the District Judge entered an Order [10] finding the Report and Recommendation [2] moot, and denying the Application [1] as moot.

         Plaintiff filed a Return of Service [7] 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 [7] at 1. Defendant filed its Answer [8] on December 8, 2017. In the Answer, among other defenses, Defendant asserted that the Complaint failed for insufficiency of service of process. See Answer [8] at 6.

         On January 5, 2018 and January 8, 2018, the parties filed their Preliminary Reports and Discovery Plans [13][14] 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 [13] at 8; Plaintiff's Preliminary Report and Discovery Plan [14] at 6. On January 9, 2018, the Court entered a Scheduling Order [16] setting the end date for discovery as May 7, 2018. See Scheduling Order [16] at 1.

         Defendant filed its Motion to Dismiss [21] on February 21, 2018. Plaintiff filed a Response [26] (“Pl. Br.”) in opposition to the Motion to Dismiss on March 6, 2018, and Defendant filed a Reply [28] (“Def. Reply Br.”) in further support of its Motion to Dismiss on March 12, 2018.

         On March 13, 2018, Plaintiff filed a second return of service, entitled “Sheriff's Entry of Service” [29]. 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 [29]. 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.

         II. DISCUSSION

         A. Standard on a Motion to Dismiss for Insufficient Service of Process

         “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)).

         Service 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 the ...

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