Thomas v. Burkhardt, et al
MEMORANDUM OPINION AND ORDER as follows: 1. Traveler's motion to dismiss 15 is DENIED as MOOT; 2. Burkhardt's motion to dismiss 26 is GRANTED, and Plaintiff's complaint against Burkhardt is DISMISSED with PREJUDICE. Signed by Honorable Judge Mark E. Fuller on 1/31/2014. (Attachments: # 1 Civil Appeals Checklist)(jg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
MICHAEL F. BURKHARDT,
CASE NO. 2:12-cv-1080-MEF
MEMORANDUM OPINION AND ORDER
On December 12, 2012, Plaintiff Alvin Thomas (“Plaintiff” or “Thomas”) filed a pro
se complaint in this action, naming Michael F. Burkhardt (“Burkhardt”) and Travelers
Casualty and Surety Company of America (“Travelers”) (collectively, the “Defendants) as
defendants. (Doc. #1.) Plaintiff seeks $99,172.77 in damages as payment for work he
performed in connection with a federal project that the general contractor, Thorington
Electrical and Construction Company (“Thorington”), allegedly never paid him. Other than
naming Burkhardt a defendant in the style of the case, Plaintiff’s complaint contains no
substantive allegations against Burkhardt. Rather, it appears that Plaintiff’s claims are
against Travelers for an alleged breach of their duty under a performance bond it provided
Now pending before the Court are two motions to dismiss. (Docs. #15, 26.) The first
motion to dismiss was filed on July 1, 2013, by Travelers on behalf of Burkhardt. (Doc.
#15.) That motion seeks dismissal of Plaintiff’s claims against Burkhardt for want of
prosecution under Rule 4(m) of the Federal Rules of Civil Procedure, which permits
dismissal of an action if a defendant is not served within 120 days after a complaint is filed.
See Fed. R. Civ. P. 4(m). The second motion to dismiss was filed on August 6, 2013, by
Burkhardt. (Doc. #26). In that motion, Burkhardt challenges both the sufficiency of service
of process on him and the sufficiency of the claims against him under Rules 4 and 12(b)(6)
of the Federal Rules of Civil Procedure, respectively.
From a review of the record, it appears the Burkhardt serves as claims counsel for
Travelers and was involved with the administration of claims Plaintiff made against the
performance bond that Travelers issued to Thorington. (Doc. #15, Ex. 1.)1 When Plaintiff
filed his complaint in this Court on December 21, 2012, he did not list Burkhardt as a
defendant to be served. (Doc. #2.) By July 2013, Burkhardt still had not been served, and
Travelers moved to dismiss Plaintiff’s claims against him for want of prosecution. (Doc.
#15.) On July 12, 2013, Plaintiff, still acting pro se, had the Clerk’s office issue a summons
to Burkhardt. (Doc. #18.) This was the first time Plaintiff attempted to serve Burkhardt.
Four days later, George Walthall appeared as counsel for Plaintiff and submitted an
opposition to Travelers’s motion to dismiss. (Docs. #19, 20.) On July 16, 2013, Burkhardt
was finally served at his place of employment (presumably, as the address on the return card
is the same address provided for Travelers). Someone other than Burkhardt accepted this
The Court may consider affidavits and other evidence supporting a defendant’s allegations
of insufficient service of process without converting it into a motion for summary judgment.
Carthen v. Baptist S. Med. Center, 2011 WL 855271, at *1 (M.D. Ala. Mar. 11, 2011) (adopting
report and recommendation of the Magistrate Judge, which discussed the standards of review with
respect to review of motions to dismiss based on insufficient service of process).
service of process. (Doc. #23.)
Based on the foregoing, the Court agrees that Plaintiff’s complaint against Burkhardt
is due to be dismissed. First, the complaint is due to be dismissed because Plaintiff has yet
to serve Burkhardt in accordance with Rule 4 of the Federal Rules of Civil Procedure.
Plaintiff did not serve Burkhardt by leaving a copy of the summons and complaint at
Burkhardt’s dwelling or usual place of abode with someone of suitable age and discretion
who resides there. See Fed. R. Civ. P. 4(e). Nor is there any evidence that the individual
who accepted service of process for Burkhardt at his place of employment was an agent
authorized by appointment or by law to receive service on Burkhardt’s behalf. See id.
Accordingly, Plaintiff’s service of process on Burkhardt was insufficient under Rule 4.
Moreover, even if Plaintiff’s service on Burkhardt had been sufficient under the Rules,
Plaintiff’s complaint against Burkhardt is due to be dismissed pursuant to Rule 12(b)(6) for
failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The
complaint contains absolutely no allegations against Burkhardt. (Doc. #1.) In fact, his only
mention is in the style of the complaint. (Doc. #1.) While Plaintiff claims that Burkhardt
should remain a party to this action because he is knowledgeable about the surety bond
claims related to Thorington (Doc. #29), this does not change the fact that the complaint,
which is the pleading that controls this case and sets forth the entirety of the allegations, is
completely devoid of any allegations or claims against Burkhardt. Thus, the Court can only
conclude that Plaintiff’s complaint fails to meet minimum pleading requirements with respect
to Burkhardt, and, therefore, Plaintiff’s complaint against Burkhardt is due to be dismissed.2
Accordingly, it is hereby ORDERED as follows:
Traveler’s motion to dismiss (Doc. #15) is DENIED as MOOT;
Burkhardt’s motion to dismiss (Doc. #26) is GRANTED, and Plaintiff’s
complaint against Burkhardt is DISMISSED with PREJUDICE.
DONE this the 31st day of January, 2014.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Bhd. of Locomotive Eng’rs
and Trainmen Gen. Comm. of Adjustment CSX Transp. N. Lines v. CSX Transp., Inc., 522 F.3d
1190, 1194 (11th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
complaint need not contain “detailed factual allegations,” but must include enough facts “to raise
a right to relief above the speculative level on the assumption that all allegations in the complaint
are true (even if doubtful in fact).” Twombly, 550 U.S. at 555.
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