Coleman v. Hwashin America Corporation et al (MAG+)

Filing 27

ORDER: it is ORDERED as follows: 1) Ms. Coleman's 26 objection to the Magistrate Judge's Recommendation is OVERRULED; 2) The 23 Recommendation of the Magistrate Judge is ADOPTED; 3) Dft Sedan's 10 Motion to Dismiss is GRANTED, and Ms. Coleman's complaint against Dft Sedan is DISMISSED without prejudice; and 4) The case is REFERRED back to the Magistrate Judge for further proceedings. Signed by Chief Judge William Keith Watkins on 10/17/2017. (Attachments: # 1 Civil Appeals Checklist) (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
VICKIE COLEMAN,
Plaintiff,
v.
HWASHIN AMERICA
CORPORATION and TERRY
SEDAN,
Defendants.

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CASE NO. 2:17-CV-234-WKW
[WO]

ORDER
Before the court is the Recommendation of the Magistrate Judge. (Doc. #
23.) On October 11, 2017, Plaintiff Vickie Coleman filed a pro se objection to the
Recommendation. (Doc. # 26.) Having conducted an independent and de novo
review of the Recommendation, see 28 U.S.C. § 636(b), and having construed Ms.
Coleman’s objection with the leniency afforded pro se plaintiffs, the court
concludes the objection is due to be overruled.
Ms. Coleman principally objects to the Magistrate Judge’s conclusion that
Defendant Terry Sedan was not properly served and that, therefore, the case
against him should be dismissed without prejudice. According to Ms. Coleman,
the Magistrate Judge “knew and should have known that Vickie Coleman met the

required duty to have Terry Sedan served.” (Doc. # 26, at 2.) Yet Ms. Coleman
puts forth no evidence supporting this claim. Instead, the evidence shows that the
summons and complaint were mailed to Defendant Sedan at his employer’s
address, and were received there by an individual who was neither Mr. Sedan nor
his agent. Because this practice does not conform to the requirements of Federal
Rule of Civil Procedure 4(e), service was improper.
Ms. Coleman also argues that she did not have a chance to amend her
complaint. (Doc. # 26, at 2.) But the Magistrate Judge afforded her just this
opportunity when it granted Ms. Coleman’s request to participate in the Pro Se
Assistance Program and directed her either to (1) file an amended complaint, or (2)
file a response to Mr. Sedan’s motion to dismiss. (Doc. # 14.) Ms. Coleman chose
to file a response that, as pertinent here, simply concluded that Mr. Sedan “was
served with the Summons and Vickie Coleman’s Civil Action Complaint.” (Doc.
# 15, at 1.) As noted above, Ms. Coleman did not offer any evidence that this
assertion was true.
Accordingly, it is ORDERED as follows:
1.

Ms. Coleman’s objection to the Magistrate Judge’s Recommendation

(Doc. # 26) is OVERRULED;
2.

The Recommendation of the Magistrate Judge (Doc. # 23) is

ADOPTED;
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3.

Defendant Sedan’s Motion to Dismiss (Doc. # 10) is GRANTED, and

Ms. Coleman’s complaint against Defendant Sedan is DISMISSED without
prejudice; and
4.

The case is REFERRED back to the Magistrate Judge for further

proceedings.
DONE this 17th day of October, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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