United States District Court, S.D. Alabama, Southern Division
B. RENEL FLOYD Plaintiff,
PEM REAL ESTATE GROUP, et al. Defendants.
REPORT AND RECOMMENDATION
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE.
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.
October 5, 2017, pro se Plaintiff B. Renel Floyd
(“Plaintiff”), an African American female and
former 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.
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.
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.
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
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.
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.
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).
Service of Process
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.
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).
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.
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.
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).
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).
Attempted Service of Proulx, Ashcraft, and Ridlon
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.
Rule of Civil Procedure 4(e) states that, with certain
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.
personal service was attempted. Thus, the methods permitted
under Fed.R.Civ.P. 4(e)(2) are not at issue
here. The pertinent inquiry is whether Plaintiff
perfected service under Federal Rule of Civil Procedure
4(e)(1). 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.
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
“[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).
court agrees that in those circumstances, it was questionable
whether the defendants received service in time to avoid a