United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE
matter is before the court on the Motion to Dismiss pursuant
to Rule 12(b)(5) of the Federal Rules of Civil Procedure
filed by HTS Express LLC (“HTS Express”). (Doc. #
15). In its Motion, HTS Express contends that it should be
dismissed from this action based on Rule 12(b)(5) due to
improper service. (Id.). Specifically, HTS Express
argues that that service was improper under the Pennsylvania
Rules of Civil Procedure. (Id.). Plaintiff has filed
a response opposing HTS Express's Motion (Doc. # 15).
(Doc. # 22). For the reasons explained below, the Motion
(Doc. # 15) is due to be denied.
September 14, 2017, Plaintiff filed this action in the
Northern District of Alabama against John William Johnson,
Jr., HTS Express LLC, and JB Hunt Transportation Services
Inc. (Doc. # 1). The Complaint alleges that Plaintiff was
involved in a multiple car wreck caused by a tractor trailer
driven by John William Johnson, Jr. (“Johnson”)
on November 16, 2015. (Id. at ¶ 8.) It also
alleges that Johnson was acting in the course and scope of
his employer HTS Express at the time of the accident.
(Id. at ¶ 9-10).
Express is a Pennsylvania limited liability corporation.
(Id. at ¶ 3). The Pennsylvania Secretary of
State lists “5 Crescent Dr., New Cumberland, PA”
as the registered agent address of HTS Express. (Doc. # 22-2
at p. 2). It does not include names of a registered agent,
officers, or directors of HTS Express. (Id.).
Plaintiff believes that Gary Mead (“Mead”), who
resides in Pennsylvania, is the sole member of HTS Express.
(Doc. # 1 at ¶ 3).
Express's summons was returned unexecuted on October 10,
2017. (Doc. # 7). On November 8, 2017, counsel for Plaintiff
contacted a Pennsylvania private investigator in attempt to
have HTS Express personally served at the New Cumberland
address. (Doc. # 22 at ¶ 6). The Pennsylvania private
investigator later informed Plaintiff's counsel that the
New Cumberland address was vacant. (Id. at ¶
counsel then hired a private investigator in Birmingham,
Alabama, to locate further information on HTS Express.
(Id. at ¶ 8). The Birmingham private
investigator found that Mead is the point of contact for HTS
Express and found an address for Mead. (Id.). With
this information, the Pennsylvania private investigator made
multiple trips to Mead's address in attempt to serve HTS
Express, but no one would answer the door. (Id. at
¶ 9). On December 19, 2017, Andrew Olsen
(“Olsen”), who resides with Meade, answered the
door and the summons and Complaint were left with him. (Docs.
# 15 at p. 6; 22 at ¶ 9). HTS Express filed this instant
motion on January 9, 2018. (Doc. # 15).
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.'” Prewitt Enterprises, Inc.
v. Org. of Petroleum Exporting Countries, 353 F.3d 916,
921 (11th Cir. 2003) (quoting Miss. Publ'g Corp. v.
Murphree, 326 U.S. 438, 444-45 (1946)). “In
assessing the validity of service of process, ‘the
standards of proof governing motions to dismiss for lack of
personal jurisdiction' are applicable.” Kammona
v. Onteco Corp., 587 F. App'x 575, 578 (11th Cir.
2014) (quoting Lowdon PTY Ltd. v. Westminster Ceramics,
LLC, 534 F.Supp.2d 1354, 1360 (N.D.Ga. 2008)). The
plaintiff bears the burden of establishing the validity of
process on a Rule 12(b)(5) motion. Prewitt Enterprises,
Inc. v. Org. of Petroleum Exporting Countries, 224
F.R.D. 497, 501 (N.D. Ala. 2002), aff'd, 353
F.3d 916 (11th Cir. 2003). Importantly, “[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).
4(c) of the Federal Rules of Civil Procedure provides,
“A summons must be served with a copy of the complaint
. . . within the time allowed by Rule 4(m).” Rule
4(e)(1) explains that an individual within a judicial
district of the United States may be served by
“following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where
the district court is located or where service is
made.” A corporation, partnership, or association
within the United States may be served “in the manner
prescribed by Rule 4(e)(1) for serving an individual”
or “by delivering a copy of the summons and of the
complaint to an officer, a managing or general agent, or any
other agent authorized by appointment or by law to receive
service of process and--if the agent is one authorized by
statute and the statute so requires--by also mailing a copy
of each to the defendant.” Fed.R.Civ.P. 4(h)(1).
Because Plaintiff filed this action in Alabama and service
has been (or attempted to be) made in Pennsylvania, Plaintiff
is entitled to follow Alabama, Pennsylvania, or federal law
in effectuating service of HTS Express. See Fed.
R. Civ. P. 4(e)(1), 4(h).
Service Was Not Effective under Alabama Law
Alabama law, a plaintiff may serve an artificial entity,
including a limited liability company, “by serving an
officer, a partner (other than a limited partner), a managing
or general agent, or any agent authorized by appointment or
by law to receive service of process.” Ala. R. Civ. P.
4(c)(6). A plaintiff can serve an artificial entity by
certified mail if the mailing is addressed to a proper human
being who is affiliated with the entity as an officer,
partner, or agent as described in Rule 4(c)(6). See
Id. at 4(i)(2)(B); see also Ex parte LERETA,
LLC, 226 So.3d 140, 145 (Ala. 2016) (“[S]ervice on
a corporation or business entity cannot be perfected by
certified mail addressed merely to the entity
itself.”); Med-Call, Inc. v. Livingston, 64
So.3d 1051, 1054 (Ala. Civ. App. 2010) (explaining that a
corporate defendant “could only have been served by
providing a summons and a copy of the complaint to one of the
persons specified in Rule 4(c)(6)”). Service by
certified mail is effective when the mailing is delivered to
the named addressee or the addressee's agent.
See Ala. R. Civ. P. 4(i)(2)(C). Notably, “[a]n
action shall not be dismissed for improper service of process
unless the service failed to inform the defendant of the
action within time to avoid a default.” Id.
appears to be arguing that the court should look at both Rule
4(c)(6) and Rule 4(i)(2) of the Alabama Rules of Civil
Procedure to find that service upon HTS Express was
effective. (Doc. # 22 at ¶ 13). However, Rule 4(c)(6)
concerns service in person (which was how the summons and
complaint was served), and Rule 4(i)(2) deals with service by
certified mail. Compare Ala. R. Civ. P. 4(c)(6)
with Ala. R. Civ. P. 4(i)(2). Plaintiff has not
provided the court with authority under Alabama law
indicating that service is sufficient when it is served on a
co-habitant of a person authorized to receive service on
behalf of an artificial entity. (See Doc. # 22). In
fact, Alabama law suggests otherwise. See, e.g.,
LVNV Funding, LLC v. Boyles, 70 So.3d 1221, 1227
(Ala. Civ. App. 2009) (explaining that a plaintiff must prove
that a corporation exercised a high degree of control over an
alleged agent in order to establish that service on a
corporation by service on an alleged agent was proper);
Johnson v. Champions, No. CIV.A. 12-0334-WS-M, 2013
WL 275957, at *2 (S.D. Ala. Jan. 24, 2013) (finding that
service on an artificial entity by certified mail was not
effective when there was no evidence that the person who
signed the certified mail receipt had authorization to
receive the addressee's mail or deliver it to the
addressee). As such, the court finds that Plaintiff has not
upheld her burden in illustrating that service on HTS Express
was effective under Alabama law. See Prewitt Enterprises,
Inc., 224 F.R.D. at 501.
Service Was Not Effective ...