Weast v. Family Dollar Distribution Center

Filing 69

ORDER granting 67 MOTION to Dismiss filed by Defendants Rozier & Barnum. Plaintiff's complaint against Defendants David Barnum and Delrick Rozier is hereby dismissed without prejudice. Signed by Judge James M. Moody on 7/6/2010. (jct)

Weast v. Family Dollar Services Inc

Doc. 69

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION BROCK WEAST VS. 3 :09CV00196-JMM DEFENDANT PLAINTIFF

FAMILY DOLLAR DISTRIBUTION CENTER ORDE R

Pending is the motion of Defendants Delrick Rozier and David Barnum to dismiss. (Docket # 67). Plaintiff has failed to respond. Plaintiff's original pro se Complaint, filed November 10, 2009, set forth allegations of sexual harassment and retaliation against Family Dollar pursuant to Title VII, 42 U.S.C. §§2000e, et. seq. On February 1, 2010, Plaintiff filed an Amended Complaint adding individual defendants as well as a sexual harassment claim under the Arkansas Civil Rights Act, Ark. Code Ann. §§16-123-102, et. seq. Defendants Rozier and Barnum moved for dismissal contending that service of process was insufficient. The Court issued an Order on May 14, 2010, finding that the summons issued was deficient as these Defendants were not properly identified, and that Plaintiff's attempt to serve these Defendants through Family Dollar was insufficient. However, the Court denied Defendants' motion to dismiss because the Plaintiff had additional time in which to correct these deficiencies. Plaintiff failed to do so. Rule 4 of the Federal Rules of Civil Procedure requires that a summons or a copy of a summons directed to the individual defendant be served along with the complaint in accordance with Rule 4(e). The plaintiff has the ultimate burden of establishing the validity of service of process. Northrup King Co.v. Compania Productora Semillas Algodeneras Selectas, S.A., 51 F. 3d 1383, 1387 (8th Cir. 1995). The procedural requirement of service of summons must be

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satisfied for a court to have jurisdiction over a defendant. Omni Capital Intern., Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97,104 (1987). As to Defendants Rozier and Barnum, Plaintiff has failed to name the proper parties and direct a summons addressed to these Defendants be properly served. Accordingly, Defendants' motion to dismiss is GRANTED. Plaintiff's complaint against Defendants Rozier and Barnum is hereby dismissed without prejudice. IT IS SO ORDERED this 6th day of July, 2010.

_________________________________ James M. Moody United States District Judge