United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Magistrate Judge Justin S.
Anand's Non-Final Report and Recommendation 
(“Non-Final R&R”), recommending denial of
Defendant Incomm's (“Defendant”) Motion to
Dismiss  (“Motion to Dismiss”).
November 15, 2017, Plaintiff Jemima Peddie
(“Plaintiff”), proceeding pro se, filed
her Complaint  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. ( at 1). On
November 20, 2017, Plaintiff filed a Return of Service 
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. ( at 1). On
December 8, 2017, Defendant filed its Answer . In the
Answer, Defendant argues, among other things, that Plaintiff
failed to execute sufficient service. ( 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.” ( at 8). On March 6,
2018, Plaintiff filed her Response in Opposition to
Defendant's Motion to Dismiss 
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” 
(“Sheriff's Entry”). The Sheriff's Entry
states that Defendant was served on March 8, 2018, by a
Gwinnett County Deputy Sheriff. ( 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
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
 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.
Motion to Dismiss for Insufficient Service of
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
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.
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.
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 ...