United States District Court, S.D. Alabama, Southern Division
KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE
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.
Federal Rule of Civil Procedure 12(b)(5), a defendant may
bring a motion to dismiss based “insufficient service
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). 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).
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.).
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…” 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.
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. 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).
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 formasserting 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). 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).
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 ...