United States District Court, M.D. Georgia, Macon Division
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
ROBERT A. B. REICHERT, IN HIS INDIVIDUAL CAPACITY
E. SELF, III, JUDGE.
Charles Coney, an African-American, served as Macon-Bibb
County's assistant county manager and applied for the
position of county manager, but was not interviewed for the
position. Defendant Robert A. B. Reichert, the mayor, instead
offered the position to two other men, both white. Both
rejected the position. The County then suspended the search
and appointed Plaintiff, along with a white woman, to serve
as co-interim county manager.
Reichert next appointed a third man, also white, as interim
county manager. Once again, the interim appointee asked to be
removed, leaving the county manager position vacant. Finally,
Defendant Reichert appointed a fourth person-who also
happened to be an African-American man-to the permanent
county manager position. As a result, Plaintiff filed this
civil rights action pursuant to 42 U.S.C. § 2000e et
seq. (“Title VII”) and 42 U.S.C. § 1981
alleging violations of the Equal Protection Clause of the
Fourteenth Amendment to redress Plaintiff's right to be
free from race discrimination and retaliation under the
United States Constitution.
properly served in his official capacity, Defendant Reichert
now seeks dismissal of Plaintiff's claims asserted
against him in his individual capacity pursuant to Federal
Rule of Civil Procedure 12(b)(5) for insufficient service of
process. Upon a review of the record, applicable law, and the
parties' briefs, the Court GRANTS the
Motion to Dismiss [Doc. 24] filed by Defendant Reichert, in
his individual capacity,  for the following reasons.
begin, Plaintiff filed an Employment Discrimination Complaint
with the Equal Employment Opportunity Commission
(“EEOC”) on May 18, 2018. [Doc. 1 at ¶ 19].
Shortly thereafter, the EEOC issued a Notice of Right to Sue
informing Plaintiff that he had 90 days within receipt of the
notice to file a lawsuit. [Id. at ¶ 20];
see also [Doc. 1-3]. With three days remaining in
the 90-day period, Plaintiff filed his Complaint. [Doc. 1].
filing his Complaint, the Clerk of Court issued two
summonses. The first summons was issued to “Robert A.
B. Reichert, Mayor as an Individual for Macon-Bibb County
Board of Commissioners” and the second summons was
issued for “Robert A. B. Reichert, Mayor Officially and
for Macon-Bibb County Board of Commissioners.” [Doc. 3
at p. 1]; see also [Doc. 4 at p. 1]. Both summonses
were served on November 27, 2018, to “Judd Drake, who
is designated by law to accept service of process on behalf
of Macon-Bibb Co. Board of Commissioners/Mayor
Reichert.” [Docs. 5, 6]. Twenty days later,
Defendants filed their Answer stating that “Defendant
Reichert has not been served in his individual
capacity.” [Doc. 7 at p. 2].
the Federal Rules of Civil Procedure, there is a 90-day
period governing the time to perfect service, which expired
on December 27, 2018. See Fed. R. Civ. P. 4(m). Yet,
on February 6, 2019, presumably at Plaintiff's request,
the Clerk of Court issued another summons to “Robert A.
B. Reichert, Mayor as an Individual Macon-Bibb County Board
of Commissioners.” [Doc. 14 at p. 1]. This summons was
served on February 13, 2019, to “Crystal Jones, who is
designated by law to accept service of process on behalf of
Macon-Bibb County Board of
Commissioners.” [Doc. 18 at p. 2]. The time between
Plaintiff's filing of his Complaint and Defendant
Reichert's dismissal motion spans 7 months and 18 days.
For 230 days, Plaintiff failed to serve Defendant Reichert in
his individual capacity and in that time period, Plaintiff
was aware of the service deficiency for 150 of these
days-since the date Defendant Reichert filed his Answer.
Never having received a summons and a copy of the Complaint,
Defendants filed a Motion to Dismiss for insufficient
service. [Doc. 24]. After consideration of Defendant
Reichert's brief and Plaintiff's response, the Court
rules as follows.
Motion to Dismiss for Lack of Service of
Rule of Civil Procedure 4(e) requires service to an
individual be made by following state law or by: (1)
delivering a copy of the summons and of the complaint to the
individual personally, (2) leaving a copy of each at the
individual's dwelling or usual place of abode with
someone of suitable age and discretion who resides there, or
(3) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process. It is
the responsibility of a plaintiff to effect proper service on
a defendant within the time allowed. Fed.R.Civ.P. 4(c)(1);
see also Lepone-Dempsey v. Carroll County
Commissioners, 476 F.3d 1277, 1280-81 (11th Cir. 2007).
“Generally, a government employee sued in his
individual capacity must be personally served.”
Reeves v. Wilbanks, 542 Fed.Appx. 742, 747 (11th
Cir. 2013). While federal procedural law undoubtedly controls
in this case, the Federal Rules of Civil Procedure provide
that a plaintiff must follow state law to properly effect
Georgia, service of process “must be made on an actual
agent” and not “merely an apparent agent.”
Headrick v. Fordham, 268 S.E.2d 753, 755 (Ga.Ct.App.
1980). The Georgia Court of Appeals has held that
“service on a non-agent in [the Defendant's] office
is not good service.” News-Press Pub. Co. v.
Kalle, 326 S.E.2d 582 (Ga.Ct.App. 1985). A secretary
within a defendant's office, unless specifically
authorized, is not able to accept service for the defendant
personally. See Id. at 583; Headrick, 268
S.E.2d at 754.
proper service of process is not effected on a defendant
within 90 days of the filing of the complaint, “the
court, upon motion or on its own initiative after notice to
the plaintiff, shall dismiss the action without prejudice . .
. or direct that service be effected within a specified time;
provided that if the plaintiff shows good cause for the
failure, the courts shall extend the time for service for an
appropriate period.” Fed.R.Civ.P. 4(m). Good cause for
failure to effect service is an excuse “only when some
outside factor, such as reliance on faulty advice, rather
than inadvertence or negligence, prevented service.”
Prisco v. Frank, 929 F.2d 603, 604 (11th Cir. 1991)
(per curiam) (discussing “good cause” under the
former Rule 4(j)), superseded in part by Horenkamp v. Van
Winkle & Co., 402 F.3d 1129, 1132 n.2 (11th Cir.
2005). Good cause does not exist when a plaintiff serves an
unauthorized party instead of the defendant, even if
“the plaintiff[ ] might have had good reason to
think” the party was authorized.
Lepone-Dempsey, 476 F.3d at 1282.
Plaintiff Failed to Serve the Complaint on Defendant