Kirsch et al v. Revenue Management Service, Inc. et al
ORDERED that: 1) Dft Immaculawn FILE AN ANSWER OR OTHER PLEADING responsive to Plfs' 8 Amended Complaint on or before 2/13/2012; 2) Dft Immaculawn's 12 Motion to Dismiss for Failure to State a Claim be CONVERTED TO A MOTION FOR SUMMARY JUDGMENT; 3) Dft Immaculawn REPLY to Plfs' 16 Response to Motion to Dismiss for Failure to State a Claim, on or before 2/6/2012; 4) Plfs file any surreply on or before 2/13/2012; 5) Plfs FILE A BRIEF AND AFFIDAVIT showing perfected service on Dft Revenue Management Service by 3/26/2012; 6) Plfs PERFECT SERVICE, by special process server, on Dfts Chris Chandler and Central Alabama Landscaping, Inc., on or before 3/26/2012. Signed by Honorable Judge Mark E. Fuller on 1/31/2012. (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
MIKE KIRSCH, et al.,
REVENUE MANAGEMENT SERVICE,
INC., et al.,
) CASE NO. 2:11-cv-578-MEF
) (WO - Do Not Publish)
On July 19, 2011, Plaintiffs filed a Complaint (Doc. #1) against Revenue Management
Service, Inc. (“RMS”), Immaculawn, LLC (“Immaculawn”), Chris Chandler (“Chandler”),
and Central Alabama Landscape and Irrigation, LLC (“CALI”). On November 2, 2011,
Plaintiffs filed an Amended Complaint (Doc. #8) against the same defendants.
The Court will proceed as to each defendant as follows:
As of the date of this order, Immaculawn has been served and has appeared in the case
(Docs. #6, 7). Immaculawn’s answer was due on September 9, 2011 (Doc. #7), but no
answer has been filed.
After the Plaintiffs responded (Doc. #11) to the Court’s order to show cause as to why
Plaintiffs’ claims against RMS and Immaculawn should not be dismissed for failure to
prosecute (Doc. #10), Immaculawn filed a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) (Doc. #12).
With its motion, Immaculawn submitted evidence that goes beyond what is contained
in the pleadings (see Doc. #10, Exs. 1-2). Therefore, as Plaintiffs point out (Doc. #16), in
order for Immaculawn’s Motion to Dismiss to be considered, the motion must be converted
to a motion for summary judgment under Federal Rule of Civil Procedure 12(d).
In the interest of giving both parties “a reasonable opportunity to present all the
material that is pertinent to the motion,” Fed. R. Civ. P. 12(d), it is ORDERED that
Immaculawn file a reply to Plaintiffs’ response (Doc. #16) containing any additional
evidence available in support of the arguments raised in its motion to dismiss (Doc. #10).
This reply will be due with the court by February 6, 2012. Plaintiffs may file a surreply
containing any additional evidence in support of their position by February 13, 2012.
Additionally, in accordance with Federal Rule of Civil Procedure 12(a)(4)(A),
Immaculawn will be ordered to file an Answer or other pleading responsive to Plaintiffs’
Amended Complaint (Doc. #8) within fourteen days of the issuance of this order.
Plaintiffs attempted to serve RMS via certified mail, return receipt requested, through
its registered agent in California, Corporate Service Center of California (“CSC”), an
artificial entity (Doc. #4).1 An individual identified as “Jim Carroll” signed for the certified
The complaint alleges that CSC is “a corporation organized and existing under the laws of
Nevada, with its principle place of business in California.” (Doc. #8 at 2).
mail but failed to indicate whether he was the addressee or the agent of CSC (Doc. #4).
While CSC is listed as RMS’s registered agent in the business entity records
maintained by California’s Secretary of State, the return receipt does not indicate whether
“Jim Carroll” was authorized to accept service for CSC (Doc. # 4).2 RMS has not
answered or otherwise made an appearance in this lawsuit. On this record, it is unclear
whether RMS has been properly served with process, in compliance with Federal Rule of
Civil Procedure 4(h).3
Under these circumstances, it is within this Court’s discretion to allow Plaintiffs
additional time to perfect service upon RMS. Horenkamp v. Van Winkle and Co., Inc.,
402 F.3d 1129, 1132 (11th Cir. 2005). The Court will grant Plaintiffs an additional sixty
days to perfect service on RMS. Within that time, Plaintiffs will be required to file a brief
with a supporting affidavit indicating either that the service already attempted was
Additionally, it is not clear that it would not have been more appropriate for Plaintiffs to
attempt to serve CSC in Nevada, its place of incorporation. The Court leaves that issue to the Plaintiffs
Pursuant to Rule 4(h), a corporation, partnership or unincorporated association may be served
with process “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. P. 4(h)(1)(B). Rule 4(h) also provides that service may be made in any manner prescribed
by state law for serving a summons in an action brought in the courts of the state where the district court
is located. See Fed. R. Civ. P. 4(h)(1)(A). Under Alabama rules, a plaintiff may perfect service “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).
Additionally, “[s]ervice on an artificial entity may be made by certified mail, but the addressee shall be a
person described in the appropriate subdivision. . . . That is, the mailing must be addressed, not simply to
the artificial entity, but to a human being affiliated with the entity as an officer, partner or agent as
described in Rule 4(c)(6).” U.S. Bank Nat. Ass’n v. Turquoise Properties Gulf, Inc., No. 10-0204-WS-N,
2010 WL 3155495 at *2 (S.D. Ala. Aug. 5, 2010).
properly effected, or that service has been properly effected since Plaintiffs’ initial
III. Chandler and CALI
Defendants Chandler and CALI have not been served. Plaintiffs’ Response (Doc.
#11) to this Court’s Order to Show Cause (Doc. #10) indicates that Plaintiffs attempted to
serve Defendants Chandler and CALI via certified mail, return receipt requested, but
failed to effect proper service because “Defendants did not claim the mail.” (Doc. #11, at
2). For the reasons stated in Part II, supra, Plaintiffs’ request to attempt to effect service
on Chandler and CALI via special process server (Doc. #11, at 2) will be granted and
Plaintiffs will be given an additional sixty days to perfect service on Chandler and
For the reasons discussed above, it is hereby ORDERED that:
1) Defendant Immaculawn FILE AN ANSWER OR OTHER PLEADING
responsive to Plaintiffs’ Amended Complaint (Doc. #8) on or before February
2) Defendant Immaculawn’s Motion to Dismiss for Failure to State a Claim (Doc.
#12) be CONVERTED TO A MOTION FOR SUMMARY JUDGMENT;
3) Defendant Immaculawn REPLY to Plaintiffs’ Response to Motion to Dismiss
for Failure to State a Claim (Doc. #16),4 on or before February 6, 2012;
As noted above, Docket Entry #12 has been converted to a motion for summary
judgment. The Court here continues to refer to Docket Entry #16 as a Response to a
Motion to Dismiss so that Defendant Immaculawn may know exactly what document it is
being ordered to reply to.
4) Plaintiffs file any surreply on or before February 13, 2012;
5) Plaintiffs FILE A BRIEF AND AFFIDAVIT showing perfected service on
Defendant Revenue Management Service by March 26, 2012;
6) Plaintiffs PERFECT SERVICE, by special process server, on Defendants Chris
Chandler and Central Alabama Landscaping, Inc., on or before March 26, 2012.
Plaintiffs shall submit affidavits to the Court to indicate that these Defendants have
been properly served. If plaintiffs fail to do so, these Defendants will be dismissed
DONE this the 31st day of January, 2012.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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