United States District Court, S.D. Georgia, Brunswick Division
ROXANNE KING; and STACY GRADY, individually and as next friend of her three minor children, Plaintiffs,
PARKER MARCY, et al., Defendants.
STAN BAKER, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiffs' Motion to
Strike and Entry of Default, (doc. 47), and Motions to
Dismiss filed by the following Defendants: Richard Leska,
Resden Talbert, Ronald Cooper, and Christopher Lowther, (doc.
24); Eric Butler, (doc. 33); and Clayton Palmer, (doc. 42).
These Defendants move for dismissal based on Plaintiffs'
failure to abide by the procedures set out in Federal Rule of
Civil Procedure 4 for service of process. The Court finds
that Plaintiffs have not fully complied with Rule 4 but, for
the reasons set forth below, the Court nonetheless
DENIES Defendants Leska, Talbert, Cooper,
and Lowther's Motion, (doc. 24), DENIES
Defendant Butler's Motion, (doc. 33), and
DENIES Defendant Palmer's Motion, (doc.
42). The Court also DENIES Plaintiffs'
Motion to Strike and Entry of Default, (doc. 47). The Court
further ORDERS additional actions specific
to Plaintiffs' counsel as outlined in the Conclusion
section at the end of this Order.
September 18, 2017, Plaintiff Roxanne King filed this cause
of action pursuant to 42 U.S.C. § 1983 alleging injury
from a December 15, 2015 arrest effectuated by Defendant
Marcy and fourteen other officers who were identified in the
Complaint as John Does 1-10 and Jane Does 1-4. (Doc. 1.)
Defendant Marcy filed an Answer on November 7, 2017. (Doc.
5.) Upon motion by Plaintiff King, the Court subsequently
ordered that Stacy Grady be added as a Plaintiff. (Docs. 6,
9.) The Court also granted Plaintiffs' request to
substitute the following fourteen individuals in place of the
John and Jane Doe Defendants: “David Hassler, Garret
Wright, D. J. Walker, David Haney, Corey Sasser, Officer___
Cooper, Officer___ Butler, Officer___ Stagner, Officer___
Hollingsworth, Officer___ Arnold, Officer___ Leska, Officer
C. Palmer, Officer C. Lowther, and Investigator Resnick
Talbert.” (Docs. 7, 9.) The Clerk of Court issued
summons for each substituted Defendant on the day they were
added as parties, February 1, 2018. (Doc. 11.) Pursuant to
Federal Rule of Civil Procedure 4(m), Plaintiffs had until
May 2, 2018 to serve the substituted
Hassler, Sasser, Wright, and Talbert acknowledged service on
May 1, 2018. (Docs. 13, 14, 15, 16.) On May 2, 2018-the
original deadline for service-Defendants Lowther and Cooper
were served personally, (docs. 27, 28), Plaintiffs emailed a
copy of the summons and Complaint to Defendant Leska, (doc.
24-1), and Plaintiffs filed a motion requesting additional
time to serve all Defendants who had not yet been served,
(doc. 18). Defendant Haney was served personally the
following day, May 3. (Doc. 29.) On May 9, 2018, the Court
granted Plaintiffs' request for an extension, and the
deadline for service was extended thirty (30) days, making
the new deadline June 8, 2018. (Doc. 19.) The Court also
ordered Plaintiffs to specifically show cause in the event
they failed to serve any of the remaining Defendants within
the extended period. (Id.) On June 6, 2018, service
was attempted on Defendants Butler and Walker. (Docs. 30,
31.) While Defendant Walker was served personally, (doc. 31),
Defendant Butler was not; a process server left a copy of the
summons and Complaint with Lieutenant Jeremiah Bergquist at
Defendant Butler's place of business, the Glynn County
Police Department, (doc. 30).
June 7, 2018, one day prior to the expiration of the extended
service period, Plaintiffs had not attempted service on four
Defendants: Palmer, Hollingsworth, Stagner, and Arnold. On
June 8, 2018, Plaintiffs filed a motion requesting additional
time to serve Defendants Hollingsworth, Stagner, and Arnold.
(Doc. 32.) The Court granted this request on July 9, 2018,
and a new deadline as to these three Defendants was set for
September 7, 2018. (Doc. 37.) Plaintiffs did not request
additional time to serve Defendant Palmer, but he was
nonetheless served personally on August 13, 2018. (Doc. 32.)
Defendants Hollingsworth, Stagner, and Arnold acknowledged
service on August 14, 2018. (Doc. 38.)
Lowther, Cooper, Leska, and Talbert filed a joint Motion to
Dismiss on May 22, 2018, averring that Plaintiffs failed to
comply with the requirements of Federal Rule of Civil
Procedure 4. (Doc. 24.) These Defendants argue that dismissal
of the claims against them is proper because Plaintiffs did
not adequately “name all parties” as required by
Rule 4(a)(1)(A). (Id. at pp. 3-7.) Specifically,
they contend that Plaintiffs' failure to identify the
first names of Defendants Leska, Cooper, and Lowther, and
Plaintiffs' misspelling of Defendant Talbert's first
name entitle them to dismissal. (Id.) As an
additional ground for relief, Defendant Leska argues the
claims against him must be dismissed because Plaintiffs did
not serve him in a manner permitted under Rule 4.
(Id. at p. 5.)
Butler filed a separate Motion to Dismiss on June 14, 2018,
also alleging Rule 4 service deficiencies. (Doc. 33.) First,
Defendant Butler argues the claims against him should be
dismissed because he was never served. (Id. at p.
3.) As noted above, Plaintiffs' process server did not
serve Defendant Butler personally; Lieutenant Bergquist was
served at Defendant Butler's place of business, the Glynn
County Police Department. (Id. at pp. 3-7.) Although
the Proof of Service indicates that Lieutenant Bergquist was
“designated by law to accept service of process on
behalf of [the] Glynn County Police Department, ” (doc.
30), Defendant Butler argues that this designation does not
prove the lieutenant was authorized to accept service on
his behalf. (Doc. 33, p. 4.) Additionally, Defendant
Butler argues Plaintiffs' failure to include his first
name constitutes a failure to sufficiently identify him under
Rule 4(a)(1)(A). (Id. at p. 5.) Because Plaintiffs
did not serve him in a manner permitted by Rule 4 and did not
identify his full name in the pleadings, Defendant Butler
urges the Court to dismiss the claims against him.
(Id. at p. 2.)
third Motion to Dismiss for insufficient service was filed by
Defendant Palmer on September 10, 2018. (Doc. 42.) Defendant
Palmer contends that Plaintiffs failed to serve him in a
timely manner as required by Rule 4(m) and the Court should
accordingly dismiss the claims against him on this basis.
(Id.) Plaintiffs did not serve Defendant Palmer
until August 13, 2018-194 days after he was added to this
action and 67 days after the extended deadline for service
(June 8, 2018). (Id. at p. 3.) Despite having done
so for other Defendants who were not served by June 8, 2018,
Plaintiffs did not request an additional extension of time to
serve Defendant Palmer nor did they show good cause for their
failure to timely serve him. (Id.)
Palmer argues that these circumstances merit the dismissal of
Plaintiffs' claims against him. (Id.)
other named defendants-Defendants Marcy, Hassler, Sasser,
Wright, Haney, Walker, Arnold, Hollingsworth and Stagner-do
not contest the sufficiency of service or service of process
Plaintiffs filed a Motion to Strike and Motion for Default
Judgment on October 5, 2018. (Doc. 47.) Plaintiffs maintain
that Defendant Palmer's Motion to Dismiss was untimely
under Federal Rule of Civil Procedure 12 and urge that his
Answer should be stricken, and a default judgment should be
entered against him. (Id.)
moving Defendants aver that dismissal is warranted under
Federal Rule of Civil Procedure 12 for failure to perfect
service in accordance with Rule 4, which “requires a
plaintiff to serve each defendant with a copy of both the
summons and the complaint” and specifies the proper
manners and methods for doing so. Cooley v. Ocwen Loan
Servicing, LLC, 729 Fed. App'x 677, 682 (11th Cir.
2018) (per curiam). Because service of process is a
jurisdictional requirement, the Court lacks personal
jurisdiction over a defendant who has not been properly
served. See Pardazi v. Cullman Med. Ctr., 896 F.2d
1313, 1317 (11th Cir. 1990). Where a plaintiff attempts to
serve a defendant and the validity of such service is
contested, “the standards of proof governing motions to
dismiss for lack of personal jurisdiction are
applicable.” Kammona v. Onteco Corp., 587
Fed.Appx. 575, 578 (11th Cir. 2014) (per curiam) (citations
omitted). “As with a challenge to jurisdiction . . .
the party on whose behalf service is made has the burden of
establishing its validity.” Familia De Boom v.
Arosa Mercantil, S.A., 629 F.2d 1134, 1138 (5th Cir.
1980) (citations omitted).
collectively put forth four theories to support their
contention that the Court lacks personal jurisdiction over
them due to inadequate service of process. (Docs. 24, 33.)
First, Defendants Lowther, Cooper, Leska, Talbert, and Butler
allege that Plaintiffs failed to adequately name or identify
them as parties as required by Rule 4(a)(1)(A). (Doc. 24, pp.
3-4; Doc. 33, p. 5.) Second, Defendant Leska points to
Plaintiffs' attempt to serve him via email and argues
this is not a method of service permitted under Rule 4(e)(2)
or Georgia law. (Doc. 24, p. 5.) Next, Defendant Butler
claims he was never served because the summons and Complaint
were neither served on him personally nor were they served on
an agent authorized to receive service of process on his
behalf. (Doc. 33, p. 5.) Finally, Defendant Palmer points to
Plaintiffs' failure to serve him within the initial
90-day period provided by Rule 4(m) or the initial extension
thereof, as well as Plaintiffs' failure to show cause and
“obtain a further extension of time.” (Doc. 42,
p. 3.) Each theory will be addressed in turn.
their Motion to Strike and Motion for Default Judgment,
Plaintiffs argue that Defendant Palmer's Motion to
Dismiss was improper under Federal Rule of Civil Procedure
12. (Doc. 47.) Defendant Palmer filed his Motion to Dismiss,
(doc. 42), and Answer, (doc. 43), on September 10, which was
28 days after Plaintiffs' untimely service upon him.
Plaintiffs aver that Defendant Palmer's Motion and Answer
were not timely because, under Federal Rule of Civil
Procedure 12, he was required to answer or file a motion to
dismiss (pursuant to subsection (b) of Rule 12) within 21
days of service. (Doc. 47.) As ...