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Kennedy v. Warren Properties, LLC

United States District Court, S.D. Alabama, Southern Division

February 8, 2018

D. ANGELINA KENNEDY, Plaintiff,
v.
WARREN PROPERTIES, LLC, et al. Defendants.

          REPORT AND RECOMMENDATIONS

          KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE

         This action is before the Court on the motion to dismiss under Federal Rule of Civil Procedure 12(b)(5) (Doc. 59) filed by Defendants Frank Warren, JoAnn Warren, Richard Colbourne, and Ronald Warren (collectively, “the Movant Defendants”). The Court has referred the motion to the undersigned Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)-(b), Federal Rule of Civil Procedure 72, and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b); (9/25/2017 electronic referral). Plaintiff D. Angelina Kennedy has timely filed a response (Doc. 62) in opposition to the motion, and the Movant Defendants have timely filed a reply (Doc. 63) to the response. The motion is now under submission. (See Doc. 60). Upon consideration, and pursuant to § 636(b)(1)(B)-(C) and Federal Rule 72(b)(1), the undersigned RECOMMENDS that the Movant Defendants' motion be GRANTED.

         I. Legal Standards

By definition, “service of summons is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served.” Miss. Publ'g Corp. v. Murphree, 326 U.S. 438, 444-45, 66 S.Ct. 242, 90 L.Ed. 185 (1946). A court is required to have personal jurisdiction under the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution “as a matter of individual liberty” so that “the maintenance of the suit ... [does] not offend ‘traditional notions of fair play and substantial justice.' ” Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702-03, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).

Prewitt Enters., Inc. v. Org. of Petroleum Exporting Countries, 353 F.3d 916, 921 (11th Cir. 2003).

In the absence of valid service of process, proceedings against a party are void. E. g., Mooney Aircraft, Inc. v. Donnelly, 402 F.2d 400, 406 (5th Cir. 1968). When service of process is challenged, the party on whose behalf it is made must bear the burden of establishing its validity. Familia de Boom v. Arosa Mercantil, S. A., 629 F.2d 1134, 1139 (5th Cir. 1980).

Aetna Bus. Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. Unit A Jan. 27, 1981).[1] Under Federal Rule of Civil Procedure 12(b)(5), a defendant may bring a motion to dismiss based on insufficient service of process. In deciding a Rule 12(b)(5) motion, a district court may consider matters outside of the pleadings and make findings of fact based on affidavits and other evidence relevant to the issue. Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008). “A defendant's actual notice is not sufficient to cure defectively executed service.” Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (per curiam).

         “[O]nce a pro se [] litigant is in court, he[ or she] is subject to the relevant law and rules of court, including the Federal Rules of Civil Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). See also Albra, 490 F.3d at 829 (“[A]lthough we are to give liberal construction to the pleadings of pro se litigants, ‘we nevertheless have required them to conform to procedural rules.' ” (quoting Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002) (per curiam)); S.D. Ala. GenLR 83.5(a).

         II. Analysis

         This action was commenced on March 10, 2017. See (Doc. 1 [Complaint]); Fed.R.Civ.P. 3 (“A civil action is commenced by filing a complaint with the court.”). On June 22, 2017, the Court issued Kennedy a summons directed to Defendants “WARREN PROPERTIES, LLC, et al., and Ronald T. Warren, Richard K. Colbourne, Frank R. Warren, Joanne C. Warren” at a post office box in Escondido, California. (See Doc. 12 at 1).[2] In support of their motion, the Movant Defendants have presented an affidavit of Brooke Scism, Legal Coordinator for Warren Properties, Inc.[3] (Doc. 59-1). Scism avers the following:

• Phil Tursi, a Warren Properties employee, signed for certified mail addressed to the Escondido P.O. box on June 26, 2017, which “included one copy of the Summons and the First Amended Complaint in” this action. (Id. at 1, ¶ 3.See also Doc. 17 at 2).
• At no time has Tursi been an agent for Frank Warren, JoAnn Warren, or Richard Colbourne, nor was he specifically authorized to receive and deliver mail to those individuals. (Doc. 59-1 at 2, ¶ 4). Tursi did not deliver a copy of the summons and first amended complaint to any of those individuals. (Id., ¶ 6).
• The Escondido P.O. box “was not the usual mailing address or the usual place of business of Frank Warren, JoAnn Warren, or Richard Colbourne in June of 2017.” (Id., ¶ 5).
•There is no individual named “Ronald Warren” associated with Warren Properties, and Frank Warren has been deceased since January ...

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