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Coney v. Macon-Bibb County

United States District Court, M.D. Georgia, Macon Division

June 28, 2019

CHARLES CONEY, Plaintiff,
v.
MACON-BIBB COUNTY, GEORGIA; and ROBERT A. B. REICHERT in his official capacity as Mayor of Macon-Bibb County, Georgia, and in his individual capacity; Defendants.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS ROBERT A. B. REICHERT, IN HIS INDIVIDUAL CAPACITY

          TILMAN E. SELF, III, JUDGE.

         Plaintiff 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.

         Defendant 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.

         Only 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, [1] for the following reasons.

         PROCEDURAL BACKGROUND

         To 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].

         After 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.”[2] [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].

         Under 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.”[3] [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.

         DISCUSSION

         A. Motion to Dismiss for Lack of Service of Process

         Federal 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 service.

         In 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.

         If 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.

         B. Plaintiff Failed to Serve the Complaint on Defendant ...


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