Motto v. State Farm Fire & Casualty Company
ORDER dismissing this action without prejudice for failure to accomplish service within a specified time; judgment will be entered accordingly. Signed by Chief Judge J. Leon Holmes on 6/13/11. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
No. 4:11CV00058 JLH
STATE FARM FIRE & CASUALTY COMPANY
Although several motions are pending, the threshold questions are whether Nicole Motto
served State Farm Fire & Casualty Company with process as required by law and, if she failed to do
so, whether State Farm has waived its objection to the failure to serve process properly by removing
this action from state court to federal court.
Exhibit K to State Farm’s motion for summary judgment or for protective order shows that
the summons and complaint were sent by certified mail, return receipt requested, to President, State
Farm Fire & Casualty Company, 12222 State Farm Blvd., Tulsa, OK 74103. Rule 4(d)(5) of the
Arkansas Rules of Civil Procedure provides that service may be had on a foreign corporation by
delivering a copy of the summons and complaint to an officer, a managing or general agent, or agent
for service of process. Rule 4(d)(8)(A)(i) provides that service may be accomplished by certified
mail, return receipt requested, with delivery restricted to the addressee or the agent of the addressee.
That rule also says that the addressee must be a natural person specified by name. Here, the
addressee was not a natural person specified by name, nor was the certified mail sent with delivery
restricted to the address or the agent of the addressee. Accordingly, State Farm was not properly
served with summons and complaint as required by the Arkansas Rules of Civil Procedure.
Motto argues that State Farm waived its objection to the validity of service of process by
removing this action to federal court. In support of that argument, Motto cites a series of cases in
which the United States Supreme Court held that a party that removes an action from state court to
federal court has waived its Eleventh Amendment immunity. See Lapides v. Bd. of Regents of Univ.
System of Georgia, 535 U.S. 613, 122 S. Ct. 1640, 152 L. Ed. 2d 806 (2002). Those cases are not
on point. It is well established that a party who removes an action from state court to federal court
does not waive that party’s objection to the lack of proper service of process. General Inv. Co. v.
Lake Shore & M.S. Ry. Co., 260 U.S. 261, 268-69, 43 S. Ct. 106, 110, 67 L. Ed. 244 (1922);
4A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1082 (3rd ed. 2002)
(“A defendant does not waive objections to personal jurisdiction or service of process by removing
the action to federal court . . . .”).
Rule 4(m) of the Federal Rules of Civil Procedure provides that if a defendant is not served
within 120 days after the complaint is filed, the Court must dismiss the action without prejudice or
order that service be made within a specified time. The rule also provides that, if the plaintiff shows
good cause for the failure, the Court must extend the time for service for an appropriate period of
time. Here, Motto did not properly serve State Farm within 120 days of filing the complaint and has
not offered any reason for the failure to accomplish service within that period of time. Accordingly,
this action is dismissed without prejudice.
IT IS SO ORDERED this 13th day of June, 2011.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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