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Robinson v. Wilcher

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

March 27, 2019

EDDIE PRINCE ROBINSON, III, Plaintiff,
v.
JOHN WILCHER, Chatham County Sheriff, in his official capacity; CORIZON HEALTH, INC.; JOSEPH MOYSE, M.D.; CARL FAULKS, M.D.; and JOHN DOES 1-99; Defendants.

          ORDER

          WILLIAM T. MOORE, JR., JUDGE

         Before the Court is Plaintiff Eddie Price Robinson, Ill's Motion for Reconsideration. (Doc. 30.) For the following reasons, Plaintiff's motion is DENIED. The Court will once more provide Plaintiff with additional time to serve Defendant Moyse. Plaintiff SHALL have 60 days to perfect service on Defendant Moyse pursuant to 28 U.S.C. § 1448. Following effective service pursuant to 28 U.S.C. § 1446(b)(2)(A), Defendant Moyse SHALL have 30 days to consent to removal.

         BACKGROUND

         This case involves serious allegations of Defendants' deliberate indifference to Plaintiff's medical needs while he was incarcerated, culminating in the loss of sight in one eye. (Doc. 1, Attach. 1.) The action was originally filed in the Superior Court of Chatham County and was removed to this Court on June 30, 2016. (Doc. 1.) The issue of whether Defendant Moyse was properly served was first raised in Plaintiff's Motion to Remand (Doc. 11) and Defendant Moyse's Special Appearance Motion to Dismiss (Doc. 16) . In his motion to remand, Plaintiff argued that this action should be remanded to superior court because Defendant Moyse was properly served and did not timely consent to removal, thus rendering removal non-unanimous between all defendants. (Doc. 11 at 1-2.) Plaintiff argues that Defendant Moyse was properly served on June 21, 2016 when a private process server served the complaint and summons on a "JANE DOE Wife" at Defendant Moyse's place of residence at 416 Woodland Estates Drive, North Baldwin, NY 11510. (Doc. 11, Attach. 1 at 1.) Plaintiff relies on the process server's affidavit of suitable service to show that service was completed. (Doc. 11 at 6.)

         Defendants Wilcher, Corizon Health, and Faulks filed a joint response in opposition to Plaintiff's motion to remand. (Doc. 17.) In their response, Defendants Wilcher, Corizon Health, and Faulks argue that Defendant Moyse has not been properly served because the service that was allegedly conducted on June 21, 2016 occurred when neither Defendant Moyse nor Defendant Moyse's wife was home. (Id. at 2.) Thus, service was not perfected because the complaint and summons were not left with a resident of the home. (Id.) Defendants Wilcher, Corizon Health, and Faulks contend that, because Defendant Moyse has not been properly served, his consent was not required to remove the action and remand would be improper. (Id. at 3.) Additionally, the properly served Defendants provided an e-mail between Plaintiff and counsel for Defendant Moyse dated July 26, 2016 in which counsel for Defendant Moyse informed Plaintiff's counsel that service was improper and offered to waive service if requested by Plaintiff. (Doc. 17, Attach. 1 at 2.)

         In Defendant Moyse's Motion to Dismiss, he argues that he was not properly served because he was not personally served and his wife was not served, despite thew VANE DOE' Wife" designation on the affidavit of suitable service. (Doc. 16, Attach. 1 at 3.) Defendant Moyse attached his own affidavit and the affidavit of his wife in support of his motion to dismiss. Defendant Moyse's wife claims that she did not speak with or see a process server on June 20, 2016 or June 21, 2016 and no one handed her any documents. (Id. at 16.) Defendant Moyse also argues that the process server's description of the Jane Doe Wife does not match his wife's appearance-his wife is an African American female with brown hair and golden highlights and is 5M". (Id. at 6.) The process server described the" VANE DOE' Wife" as an African American female with black hair who was 5'9" to 6'0" tall. (Id.)

         On March 28, 2017, the Court entered an order denying both Plaintiff's Motion to Remand (Doc. 11) and Defendant Moyse's Motion to Dismiss (Doc. 16). (Doc. 29.) The Court gave Plaintiff sixty days to perfect service on Defendant Moyse and then, following effective service, Defendant Moyse would have 30 days to consent to removal. (Id. at 7.)

         Plaintiff filed a motion for reconsideration on April 24, 2017. (Doc. 30 at 1.) In his motion, Plaintiff argues that the Court did not rule on whether service was proper and that, if he complies with this Court's order to perfect service on Defendant Moyse, then he risks waiving the issue of improper removal on appeal. (Doc. 30 at 1-2.) Plaintiff also argues that if Defendant Moyse participates in this case, then "the parties risk having an entire trial and judgment only to have the decision reversed because Dr. Moyse was not validly served." (Id. at 6.) From this Court's review of the docket, Plaintiff still has not perfected service on Defendant Moyse.

         ANALYSIS

         "In cases removed from state courts, the sufficiency of service of process attempted before removal is governed by state law." White v. Capio Partners, LLC, No. 1:15-CV- 120, 2015 WL 5944943, at *2 (S.D. Ga. Oct. 13, 2015) (citing Rentz v. Swift Transp. Co., 185 F.R.D. 693, 696 (M.D. Ga. 1998)). "Once a case has been removed to federal court, federal law governs future attempts to serve process." Id (citing 28 U.S.C. § 1448 and Fed.R.Civ.P. 81(c) (1)). In this case, service was attempted on June 21, 2016 and the case was removed to federal court on June 30, 2016 (Doc. 1) . Accordingly, because the case was in state court when Plaintiff attempted service, the sufficiency of that service is governed by Georgia law. In pertinent part, O.C.G.A. § 9-11-4 (e) provides:

(e) . . . Service shall be made by delivering a copy of the summons attached to a copy of the complaint as follows:
(7) . . . to the defendant personally, or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.

O.C.G.A. § 9-11-4(e).

         Plaintiff argues that Defendant Moyse was properly served on June 21, 2016 through substituted service when a private process server served the complaint and summons on a "JANE DOE Wife" at Defendant Moyse's place of residence at 416 Woodland Estates Drive, North Baldwin, NY 11510. (Doc. 11, Attach. 1 at 1.) Plaintiff relies almost exclusively on the affidavit of suitable service by the process server to show that Defendant Moyse was properly served. The affidavit of suitable service completed by Alberto Perez testifies that "service was made by delivering a true copy thereof to and leaving with VANE DOE' Wife a person of suitable age and discretion." (Doc. 30, Attach. 1 at 3.) The process server described the individual as follows: "Approx Age: 51-65 Yrs., Approx Weight: 131-160 Lbs., Approx Height: 5' 9" - 6' 0", Sex: Female, Approx Skin: Black, Approx Hair: Black." (Id.) The process server also included a narrative that he spoke to "JANE ...


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