Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

King v. Marcy

United States District Court, S.D. Georgia, Brunswick Division

February 19, 2019

ROXANNE KING; and STACY GRADY, individually and as next friend of her three minor children, Plaintiffs,
v.
PARKER MARCY, et al., Defendants.

          ORDER

          R. STAN BAKER, UNITED STATES DISTRICT JUDGE.

         This 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.

         BACKGROUND

         On 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 Defendants.[1]

         Defendants 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).

         As of 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.)

         Defendants 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.)

         Defendant 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.)

         The 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.)

         Defendant Palmer argues that these circumstances merit the dismissal of Plaintiffs' claims against him. (Id.)

         The 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 upon them.

         Finally, 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.)

         DISCUSSION

         The 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).[2]

         Defendants 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.

         In 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.