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Peddie v. Incomm

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

May 17, 2018

JEMIMA PEDDIE, Plaintiff,
v.
INCOMM, Defendant.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Magistrate Judge Justin S. Anand's Non-Final Report and Recommendation [33] (“Non-Final R&R”), recommending denial of Defendant Incomm's (“Defendant”) Motion to Dismiss [21] (“Motion to Dismiss”).

         I. BACKGROUND

         On November 15, 2017, Plaintiff Jemima Peddie (“Plaintiff”), proceeding pro se, filed her Complaint [4] alleging 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. ([33] at 1). On November 20, 2017, Plaintiff filed a Return of Service [7] indicating service on “Janice Valavez (Mail Room Coordinator), ” who was, according to the Return of Service, “designated by law to accept service of process” on Defendant's behalf. ([7] at 1). On December 8, 2017, Defendant filed its Answer [8]. In the Answer, Defendant argues, among other things, that Plaintiff failed to execute sufficient service. ([8] at 6). On February 21, 2018, Defendant filed its Motion to Dismiss arguing that service was insufficient because Plaintiff's process server served process on “a fourteen-year-old intern wearing a school uniform.” ([33] at 8). On March 6, 2018, Plaintiff filed her Response in Opposition to Defendant's Motion to Dismiss [26] (“Response”).

         On March 13, 2018, more than ninety days after the Complaint was filed, Plaintiff filed a second return of service, entitled “Sheriff's Entry of Service” [29] (“Sheriff's Entry”). The Sheriff's Entry states that Defendant was served on March 8, 2018, by a Gwinnett County Deputy Sheriff. ([29] at 1). The Sheriff's Entry notes further that service was executed by leaving a copy of “the action and summons” with “Alisha Smith, in charge of the office and place of doing business of said Corporation.” (Id.). The name and address of the party to be served is “Corporation Service Company (In care of Brooks Smith), 40 Technology Parkway South Suite, 300, Norcross, Georgia 30092.” (Id.).

         On March 22, 2018, the Magistrate Judge issued his Non-Final R&R recommending denying Defendant's Motion to Dismiss. The Magistrate Judge noted first that Defendant's Motion to Dismiss is untimely because it was filed after Defendant filed its Answer-in contravention of Rule 12(b) of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 12(b) (“A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.”); see also [33] at 6-7. The Magistrate Judge next found that dismissal is warranted because the Motion to Dismiss is “meritless.” Id. at 7. Neither of the parties filed objections to the Non-Final R&R.

         II. LEGAL STANDARDS

         A. Motion to Dismiss for Insufficient Service of Process

         “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 of the Federal Rules of Civil Procedure 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); see Lepone-Dempsey v. Carroll Cnty. Comm'rs, 476 F.3d 1277, 1281 (11th Cir. 2007). Unless service is waived, the individual effecting service must file proof of service with the Court. Fed.R.Civ.P. 4(1)(1). Generally speaking, proof of service is demonstrated by a server's affidavit. Id.

         Rule 4(h) governs service of process upon corporations and partnerships. Fed.R.Civ.P. 4(h). It provides that service upon a corporation or partnership may be effected (1) by complying with the requirements of service under the law of the state in which the district court is located or in which service is effected, or (2) “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 and-if the agent is one authorized by statute and the statute so requires-by also mailing a copy of each to the defendant.” Fed.R.Civ.P. 4(h)(1).

         Because this Court is located in Georgia, service may be made pursuant to Georgia law. Fed.R.Civ.P. 4(e)(1). The applicable Georgia statute states, in part,

If the action is against a corporation incorporated or domesticated under the laws of this state or a foreign corporation authorized to transact business in this state, to the president or other officer of such corporation or foreign corporation, a managing agent thereof, or a registered agent thereof, provided that when for any reason service cannot be had in such manner, the Secretary of State shall be an ...

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