Phifer v. Hyundai Power Transformers USA et al
Filing
37
OPINION AND ORDER: it is ORDERED as follows: (1) The 25 motion to dismiss by dft Luther Scull is denied without prejudice with leave to renew after 35 days; (2) Plf Robert Phifer, Jr., has 28 days from the issuance of this order to serve dft Scull properly. Signed by Honorable Judge Myron H. Thompson on 6/23/2020. (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
ROBERT PHIFER, JR.,
)
)
Plaintiff,
)
)
v.
)
)
HYUNDAI POWER TRANSFORMERS )
USA, et al.,
)
)
Defendants.
)
CIVIL ACTION NO.
2:19cv166-MHT
(WO)
OPINION AND ORDER
Plaintiff Robert Phifer, Jr. brought this lawsuit
against defendant Luther Scull, an employee of Hyundai
Power Transformers (HPT), asserting violations of the
Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C.
§§ 2601-54.*
See Amended Complaint (doc. no. 18).
The
case is currently before the court on Scull’s motion to
*
The court previously addressed the allegations
in the lawsuit against defendant HPT as well as three
other HPT employees, defendants Ted Arkuszeski, Clayton
Payne, and Tony Wojchiehowski.
See Phifer v. Hyundai
Power Transformers USA, No. 2:19-cv-166, 2020 WL
3106519, at *1 (M.D. Ala. June 11, 2020) (Thompson,
J.).
dismiss the complaint for two reasons: (1) insufficient
service of process; and (2) failure to state a claim,
under the theory that Scull does not meet the FMLA’s
definition of “employer.”
no. 25).
properly
See Mot. to Dismiss (doc.
Although the court agrees that Scull was not
served,
it
will
exercise
its
discretion
permit Phifer additional time to perfect service.
to
As a
result, the court will not address the scope of the
FMLA at this time.
Federal
Rule
of
Civil
Procedure
4
methods by which a person may be served.
Civ. P. 4.
sets
forth
See Fed. R.
In general, the rule authorizes service by
“(A) delivering
a
copy
of
the
summons
and
of
the
complaint to the individual personally; (B) leaving a
copy
place
of
each
of
at
abode
the
individual's
with
someone
of
dwelling
suitable
or
age
usual
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.”
Id.
at
4(e)(2).
Although the rule also authorizes service by any method
2
permitted under state law, the Alabama Rules of Civil
Procedure do not provide for any additional methods of
service.
See Ala. R. Civ. P. 4(c)(1).
Both sides agree that Phifer attempted to serve
Scull by certified mail at HPT’s address.
See Pl.’s
Br. In Opp. (doc. no. 28) at 1 (“Defendant is correct
that
the
Complaint
Transformer
USA
was
served
address.”).
at
The
the
Hyundai
return
of
Power
service
shows that it was signed for by an individual other
than Scull.
result,
See Return of Service (doc. no. 21).
such
authorized
service
the
would
be
third-party
proper
only
individual
to
if
As a
Scull
receive
service on his behalf.
Phifer argues that service was proper because of
disclosures made by Scull’s employer HPT and Scull’s
attorneys in another case pending before this court:
Gipson
v.
Hyundai
Power
Transformers,
USA,
Inc.,
et
al., Case No. 2:17-cv-00498-MHT-SMD, later consolidated
with Case No. 2:19-cv-00224-MHT-SMD.
a
defendant
in
Gipson
and
3
thus
But Scull was not
could
not
have
authorized any third-party service.
Phifer
also
argues
that,
regardless,
Scull’s
participation in the suit amounts to waiver.
argument is no more availing.
But this
While “[o[bjections to
service of process[,] ... like any other objection to
jurisdiction
over
the
person,
can
be
waived
by
the
party over whom jurisdiction is sought” if the party
“makes a pre-answer motion under Rule 12 and fails to
include such objections in that motion,” that is not
the case here.
1313,
1317
omitted).
Pardazi v. Cullman Med. Ctr., 896 F.2d
(11th
Cir.
1990)
(internal
citations
Here, Scull has explicitly objected to the
method service in his Rule 12 motion.
The fact that he
has also moved to dismiss the complaint for failure to
state a claim does not change the analysis.
See, e.g.,
Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir.
2007) (“A defendant's actual notice is not sufficient
to
cure
defectively
executed
service.”);
Melton
v.
Wiley, 262 F. App’x 921, 922 (2008) (service of process
to a captain of a defendant sheriff was improper, even
4
when it was undisputed that the sheriff “received the
complaint from his captain, filed timely his answer[,]
and participated actively in the litigation”).
Despite
the
improper
service,
the
court
is
cognizant of the fact that Scull made this motion to
dismiss less than one month after Phifer added him as a
party in an amended complaint.
Had the court acted on
this motion at the time it was filed, it would have
denied
the
motion
without
prejudice
as
premature.
However, Phifer did not raise this argument and the
time limit for service has long since expired.
Federal Rule of Civil Procedure 4 makes clear that,
“If a defendant is not served within 90 days after the
complaint is filed, the court--on motion or on its own
after notice to the plaintiff--must dismiss the action
without prejudice against that defendant or order that
service be made within a specified time.”
P. 4(m).
Fed. R. Civ.
While the federal rule states that, “if the
plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate
5
period,” Fed. R. Civ. P. 4(m), Phifer has maintained
that the service of Scull was proper, not that good
cause was shown to merit an extension.
Nonetheless, an
extension of time may be permitted without a showing of
good cause.
See Horenkamp v. Van Winkle And Co., 402
F.3d 1129, 1132 (11th Cir. 2005) (“[T]oday we join our
sister
circuits
grants discretion to
and
hold
the
district
that
court
Rule
to
4(m)
extend
the time for service of process even in the absence of
a showing of good cause.”).
Although Phifer could have
perfected service while this motion was pending, the
court will exercise its discretion to permit a limited
extension of time for service because Scull’s motion
should have initially been denied as premature.
***
Accordingly, it is ORDERED as follows:
(1) The motion to dismiss by defendant Luther Scull
(doc. no. 25) is denied without prejudice with
leave to renew after 35 days.
6
(2) Plaintiff Robert Phifer, Jr., has 28 days from
the issuance of this order to serve defendant
Scull properly.
DONE, this the 23rd day of June, 2020.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
7
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