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Floyd v. Pem Real Estate Group

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

August 17, 2018

B. RENEL FLOYD Plaintiff,
v.
PEM REAL ESTATE GROUP, et al. Defendants.

          REPORT AND RECOMMENDATION

          KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Defendants HW Mobile Investco LLC, Jude Reynolds, Kristi Ridlon, Macy Proulx, Josh Ashcraft, and Derrick Williams' Motions to Dismiss (Docs. 39, 41, 43, 45, 47, and 50), Plaintiff B. Renel Floyd's Responses (Docs. 63, 64, 65, 66, 67, and 68), and Defendants' Replies (Docs. 70, 71, 7374, 75, and 76). The pending motions was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). After careful consideration of the record, it is RECOMMENDED that Defendant HW Investco, LLC's motion (Doc. 45) be DENIED, Defendants Ridlon, Proulx, and Ashcraft's motions (Docs. 39, 41, and 43) be GRANTED in part and DENIED in part, and Defendant Reynolds' motion (Doc. 47) be GRANTED in part and DENIED in part, and Defendant Williams' motion (Doc. 50) be GRANTED.

         Background

         On October 5, 2017, pro se Plaintiff B. Renel Floyd (“Plaintiff”), an African American female and former[1] tenant at Huntleigh Woods Apartment Complex in Mobile, Alabama, filed a Complaint against HW Mobile Investco LLC, Derrick Williams, Jude Reynolds, Kristi Ridlon, Macy Proulx, and Josh Ashcraft, alleging that Defendants have engaged in unlawful discrimination, and violations of the Civil Rights, Fair Housing, and Disability Acts. (Doc. 1). Defendants Reynolds, Proulx, Ridlon, and Ashcraft are or were employees of the apartment complex who interacted with Plaintiff while she resided at the complex. Defendant HW Mobile Invesco LLC appears to be the owner of the complex, and Defendant Williams is an Assistant City Attorney for the City of Mobile, Alabama.

         On December 14, 2017, Plaintiff filed an Amended Complaint. (Doc. 16). The Court ordered Plaintiff to file a Second Amended Complaint, explaining the why the First Amended Complaint was deficient and providing Plaintiff an opportunity to cure those deficiencies. (Doc. 34). On February 6, 2018, Plaintiff filed her Second Amended Complaint, which is the operative complaint in this action. (Doc. 37). Defendants, who had all previously moved to dismiss the First Amended Complaint each file a renewed motion to dismiss the Second Amended Complaint.

         Defendants Proulx, Ashcraft, and Ridlon have moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(5)-(6), arguing that they were improperly served and that Plaintiff fails to state a claim against them. Defendant Reynolds has moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), arguing that Plaintiff has failed to state a claim against her. Defendant HW Investco LLC has moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(4)-(5), for insufficient process and insufficient service of process.

         Standard of Review

         Defendants have moved for dismissal pursuant to Federal Rules of Civil Procedure 12(b)(4), (5), and (6). Rule 12(b)(4) allows for the dismissal of the complaint based on insufficient process. “Proper service of process requires inclusion of the summons containing, among other things, the name of the court and the court's seal.” Brown v. Hillsborough Area Reg'l Transit, No. 8:08-CV-1465-T-33TBM, 2010 WL 455310, at * 2 (M.D.Fla. Feb.3, 2010) (citing Fed.R.Civ.P. 4(a)(1)). “A party objecting to the sufficiency of process under Rule 12(b)(4) must identify substantive deficiencies in the summons, complaint or accompanying documentation.” Fly Brazil Group, Inc. v. The Government of Gabon, Africa, 709 F.Supp.2d 1274, 1279 (S.D.Fla.2010) (citation and internal quotation marks omitted).

         Rule 12(b)(5) allows for dismissal for insufficient service of process. Fed R. Civ. P. 12(b)(5). The defendant has the initial burden of challenging the sufficiency of service and “must describe with specificity how the service of process failed to meet the procedural requirements of [Fed. R. Civ. P. 4].” Hollander v. Wolf, No. 09-80587- CIV, 2009 WL 3336012, at *3 (S.D.Fla. Oct.14, 2009). The burden then shifts to the plaintiff to prove a prima facie case of proper service of process. Id. If the plaintiff can establish that service was proper, the burden shifts back to the defendant to “bring strong and convincing evidence of insufficient process.” Id. (citation omitted). “The Court may look to affidavits, depositions, and oral testimony to resolve disputed questions of fact.” Id. (citations omitted).

         When considering a Rule 12(b)(6) motion to dismiss, the Court must accept as true the allegations set forth in the complaint drawing all reasonable inferences in the light most favorable to the plaintiff. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Even so, a complaint offering mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S 662, 678 (2009) (quoting Twombly, 550 U.S. at 555); accord Fin. Sec. Assurance. Inc. v. Stephens, Inc., 500 F.3d 1276, 1282-83 (11th Cir. 2007). Further, the complaint must “contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.” ‘ Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). Put another way, a plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This so-called “plausibility standard” is not akin to a probability requirement; rather, the plaintiff must allege sufficient facts such that it is reasonable to expect that discovery will lead to evidence supporting the claim. Id.

         Analysis

         Defendants Proulx, Ridlon, and Ashcraft have all moved for dismissal pursuant to Federal Rules of Civil Procedure 12(b)(5) and (6). Defendant Reynolds has moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), and Defedant HW Investco Mobile, LLC has moved for dismissal pursuant to Federal Rules of Civil Procedure 12(b)(4) and (5).

         I. Service of Process

         Defendants Proulx, Ashcraft, Ridlon, and HW Investco LLC's motions assert essentially the same legal arguments as to why Plaintiff's complaint should be dismissed under Federal Rule of Procedure 12(b)(5) for insufficient service of process. Therefore, the motions under 12(b)(5) will be treated in one discussion.

         “Service of process is a jurisdictional requirement: a court lacks jurisdiction over the person of a defendant when the defendant has not been served.” Pardazi v. Cullman Med. Ctr., 896 F.3d 1313, 1317 (11th Cir.1990). Therefore, where a court finds insufficient service, it is “improper for the district court to ... reach[ ] the merits in th[e] case and to ... issue[ ] a dismissal with prejudice.” Jackson v. Warden, FCC Coleman-USP, 259 Fed.Appx. 181, 182-83 (11th Cir.2007). Accordingly, this Court will address Defendants' 12(b)(5) motions first. In making such a determination, “the serving party ... bears the burden of proof with regard to validity of service.” Anderson v. Dunbar, 2009 WL 2568062, at *8 (N.D.Ga. Aug.18, 2009) (citing Sys. Sings Supplies v. U.S. Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir.1990)); Profit v. Americold Logistics, LLC, 2008 WL 1902190, at *4 (N.D.Ga. Apr.25, 2008); Profit v. Americold Logistics, LLC, 248 F.R.D. 293, 296 (N.D.Ga.2008).

         The Court of Appeals for the Eleventh Circuit has explained:

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).[2]

         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).

         A. Attempted Service of Proulx, Ashcraft, and Ridlon

         Plaintiff's Complaint was filed October 5, 2017. (Doc. 1). Summons were issued as to Defendants Proulx, Ashcraft, and Ridlon. (Doc. 8). The Summonses were addressed as follows:

Huntleigh Woods Apartments Macy Proulx - Office 375 Hillcrest Rd. Mobile, AL 36606
Huntleigh Woods Apartments Joshua D. Ashcraft - Office 375 Hillcrest Rd. Mobile, AL 36606
Pem Real Estate Group, LLC Arlington Heights Apts - Office Kristena R. Boyd Ridlon 7070 Grelot Rd. Mobile, AL 36695

(Doc. 8 at 5). Plaintiff mailed each of these Summonses (and a copy of the Complaint) via Certified Mail. Proulx and Ashcraft's return card were signed by Jude Reynolds. (Docs. 10-11). Ridlon's return card is difficult to read but appears to be signed by someone whose initials are J.B. (Doc. 12). The signature is unlike that of Jude Reynolds. (Compare Docs. 10-11 with 12). Neither the “Agent” or “Addressee” box was checked on Proulx, Ashcraft, or Ridlon's return cards.

         Federal Rule of Civil Procedure 4(e) states that, with certain inapplicable exceptions,

an individual…may be served in a judicial district for the United States by:
(1) 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; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e). Piecing together the allegations of the Second Amended Complaint, Defendants Proulx, Ashcraft, and Ridlon were all employed at Huntleigh Woods during the time period relevant to Plaintiff's allegations. Plaintiff alleges that they were supervised by Jude Reynolds and that Reynolds regularly signed for packages and mail for apartment tenants. According to Plaintiff, because Reynolds allegedly managed Defendants Proulx, Ashcraft, and Ridlon, she was authorized to receive service of process on their behalf.

         No personal service was attempted. Thus, the methods permitted under Fed.R.Civ.P. 4(e)(2) are not at issue here.[3] The pertinent inquiry is whether Plaintiff perfected service under Federal Rule of Civil Procedure 4(e)(1).[4] This rule provides that an individual “may be served in a judicial district for the United States 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). Plaintiff attempted service via certified mail, which is permitted under Alabama law:

…[T]he attorney or party filing the process and complaint or other document to be served may obtain a copy of the filed pleading from the clerk or, if the pleading was filed electronically, use the copy returned electronically by the clerk. The attorney or party shall then place that copy of the process and complaint or other document to be served in an envelope and address the envelope to the person to be served with instructions to forward. In the case of an entity within the scope of one of the subdivisions of Rule 4(c), the addressee shall be a person described in the appropriate subdivision. The attorney or party shall affix adequate postage and place the sealed envelope in the United States mail as certified mail with instructions to forward, return receipt requested, with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. The return receipt shall be addressed to the clerk of the court issuing the process and shall identify the case number of the case in which the pleading has been filed. Upon mailing, the attorney or party shall immediately file with the court an “Affidavit of Certified Mailing of Process and Complaint.” That affidavit shall verify that a filed copy of the process and complaint or other document to be served has been mailed by certified mail in accordance with this rule.

Ala. R. Civ. P. 4(i)(2)(B)(ii)(emphasis added). Further, “[s]ervice by certified mail shall be deemed complete…from the date of delivery to the named addressee or the addressee's agent as evidenced by signature on the return receipt.” Ala. R. Civ. P. 4(i)(2)(C). For purposes of Alabama Rule 4(i)(2)(C), “ ‘agent' means a person or entity specifically authorized by the addressee to receive the addressee's mail and to deliver that mail to the addressee. Such agent's authority shall be conclusively established when the addressee acknowledges actual receipt of the summons and complaint or the court determines that the evidence proves the addressee did actually receive the summons and complaint in time to avoid a default.” Id.

         Defendants Proulx, Ashcraft, and Ridlon argue that Plaintiff failed to perfect service of process because the persons who signed for the mail, Jude Reynolds and J.B., did not check the box labeled “agent” on the return receipt proving that he or she was authorized to receive mail on behalf of Defendants. Generally, Plaintiff argues that it is clear from the record that Defendants were aware of this action and received notice of it, as evidence by their participation in the litigation.

         Ordinarily, “[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). Further, Plaintiff did not comply with the directives contained in Ala. R. Civ. P. 4(i)(2)(B)(ii). However, the Court must carefully examine the language and requirements of Ala. R. Civ. P. 4(i)(2)(C), which permits service via certified mail. Defendants cite several cases that support its contention that a plaintiff must strictly adhere to the service rules to confer jurisdiction. Notably however, each case cited by Defendant is distinguishable from the facts in this case. Those cases involved circumstances where a default judgment or motion for entry of default has been granted against the defendant and service was not strictly adhered to and therefore, improper. See Johnson v. Champion, No. 12-334-WS-M, 2013 WL 275957 (S.D.Ala. Jan. 24, 2013); McDermott v. Tabb, 32 So.3d 1 (Ala. 2009); Parks v. Quality Serv. Integrity, No. 2:13-CV-909-WKW, 2015 WL 6872498, at *1 (M.D. Ala. Nov. 9, 2015).

         The court agrees that in those circumstances, it was questionable whether the defendants received service in time to avoid a ...


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