United States District Court, S.D. Alabama, Southern Division
D. ANGELINA KENNEDY, Plaintiff,
WARREN PROPERTIES, LLC, et al. Defendants.
REPORT AND RECOMMENDATIONS
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
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
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.
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). 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
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).
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). In support of their motion, the
Movant Defendants have presented an affidavit of Brooke
Scism, Legal Coordinator for Warren Properties,
(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 ...