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Timmons v. Scotch Plywood Co.

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

July 5, 2018

CORNULIUS WAYNE TIMMONS, Plaintiff,
v.
SCOTCH PLYWOOD COMPANY, Defendant.

          ORDER

          KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE

         This action is before the Court on the motion to quash the summons, or in the alternative, motion to dismiss under Federal Rule of Civil Procedure 12(b)(5) (Doc. 8) filed by Defendant Scotch Plywood Company, identifying itself as Scotch Plywood, Inc. (hereinafter, “Scotch”). Plaintiff Cornulius Wayne Timmons has timely filed a response (Doc. 10) in opposition to the motion, Scotch has timely filed a reply (Doc. 11) to the response, and the motion is now under submission (see Doc. 9). Upon consideration, the Court finds that Scotch's motion to quash the summons is due to be GRANTED, and that the alternative motion to dismiss under Federal Rule 12(b)(5) is due to be DENIED.

         I. Legal Standards

         Under Federal Rule of Civil Procedure 12(b)(5), a defendant may bring a motion to dismiss based “insufficient service of process.”

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] In deciding a Federal 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).

         “Motions under Federal Rule[]…12(b)(5) differ from the other motions permitted by Rule 12(b) somewhat in that they offer the district court a course of action-quashing the process without dismissing the action-other than simply dismissing the case when the defendant's defense or objection is sustained…Usually a movant requests dismissal and quashing in the alternative or asks for both forms of relief…The federal courts have broad discretion to dismiss the action or to retain the case but quash the service that has been made on the defendant.” The Late Charles Alan Wright, et al., 5B Fed. Prac. & Proc. Civ. § 1354 (3d ed.) (footnotes omitted). Accord Villafana v. Auto-Owners Ins., Civil Action No. 06-0684-WS-B, 2006 WL 3834276, at *2 & n.8 (S.D. Ala. Dec. 29, 2006) (Steele, J.).

         II. Analysis

         Federal Rule of Civil Procedure 4(h)(1) provides the methods for serving process on corporations that are located within a judicial district of the United States, such as Scotch. It states that, “unless the defendant's waiver has been filed, ” a corporation must be served: (A) “in the manner prescribed by Rule 4(e)(1) for serving an individual” - that is, 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[, ]” Fed.R.Civ.P. 4(e)(1) - or (B) “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…”[2] Fed. R. Civ. 4(h)(1). Alabama, the only applicable “state law” under Federal Rule 4(e)(1), also requires service of process to be made on a corporation “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). Thus, “[b]oth the Alabama Rules of Civil Procedure and the Federal Rules of Civil Procedure contemplate service upon a corporation through its ‘officers' or ‘agents.' ” Drill S., Inc. v. Int'l Fid. Ins. Co., 234 F.3d 1232, 1238 n.10 (11th Cir. 2000) (per curiam) (citing Fed.R.Civ.P. 4(h)(1); Ala. R. Civ. P. 4(c)(6)).

         The Court first dispenses with Timmons's claim that “co-counsel for the Defendant, Attorney Sidney F. Lewis, …agreed to accept service” on behalf of Scotch. (Doc. 10 at 1). Having reviewed the letter from Lewis (Doc. 10 at 3) that Timmons attaches in support of this assertion, the undersigned agrees with Scotch that nothing therein evidences an agreement to accept or waive service of process on behalf of Scotch.[3] Moreover, under both Alabama and federal law, service of process is not effectual on a party's attorney solely by reason of his capacity as attorney. See Ransom v. Brennan, 437 F.2d 513, 518 (5th Cir. 1971); Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45, 52 (Ala. 2003).

         The summons issued by the Clerk of Court was directed to “Scotch Plywood Company, Mr. Will Colvin, Plant Manager, 101 Main Street, Fulton, AL 36446.” (Doc. 5). On April 30, 2018, counsel for Timmons filed a Return of Service form[4]asserting that counsel had “personally served the summons on the individual at (place) Scotch Plywood Company 101 Main Street, Fulton, AL on April 26, 2018.” (Doc. 7).[5] Scotch claims that “service of process was improper because the summons and complaint were not served on the proper individual for the corporation who is authorized to receive service. In fact, the return of service lists only the company - no individual is listed at all.” (Doc. 8 at 2).

         In response, Timmons asserts, without providing additional evidentiary support, that he served the complaint and summons on “Will Covin [sic], the plant manager and a shareholder of Defendant's company…” (Doc. 10 at 1). In reply, Scotch asserts that Colvin, “purportedly a ‘plant manager and a shareholder'…, is not a managing or general agent for service of process on Scotch[, n]or does Mr. Colvin satisfy any other criteria for sufficient service of process.” (Doc. 11 at 1). In support, Scotch cites a printout from the Alabama Secretary of State's ...


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