Parham v. Millcreek of Arkansas et al

Filing 51

ORDER denying 49 Motion for Default Judgment; Claims against Acadia dismissed without prejudice; ***Civil Case Terminated. Signed by Honorable Susan O. Hickey on August 4, 2014. (cnn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
LOTTIE JEAN PARHAM; and
ROSIE PARHAM

V.

PLAINTIFFS

CASE NO. 1:12-CV-1055

ACADIA HEALTHCARE OF
TENNESSEE

DEFENDANT
ORDER

Before the Court is Plaintiffs’ Motion for Default Judgment (ECF No. 49). Acadia
Healthcare Company, Inc. (“Acadia”) has filed a response. (ECF No. 50). The Court finds this
matter ripe for consideration.
Plaintiffs claim they are entitled to a default judgment against Acadia because Acadia has
failed to respond to their Amended Complaint within the time prescribed by the Federal Rules of
Civil Procedure. Acadia responds that they are not in default because they were never properly
served with the Amended Complaint. In order to address the parties’ arguments, a somewhat
lengthy recitation of the history of this case is necessary.
Plaintiffs filed their Complaint on June 4, 2012. (ECF No. 1). Shortly thereafter,
Plaintiffs filed an Amended Complaint. (ECF No. 4). The Amended Complaint included claims
against five Defendants:

Millcreek of Arkansas; Matt Wilshire; Doug Freeman; Brenda

Matthews; and Acadia Healthcare of Tennessee. Plaintiffs claimed that Defendants engaged in
discriminatory conduct in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
1981 and 1983, the Equal Pay Act, the Age Discrimination in Employment Act, the Fourteenth

Amendment, and the Arkansas Civil Rights Act. Plaintiffs also made several claims under
Arkansas common law including breach of contract, wrongful discharge, and outrage.
In August 2012, all of the Defendants, with the exception of Acadia, filed motions to
dismiss. (ECF Nos. 12, 14, 16, 18). In the briefing on the Motions to Dismiss, the parties made
the Court aware of a conflict regarding service upon Acadia. Defendant Millcreek maintained
that Plaintiffs’ attempted service on “Acadia Healthcare of Tennessee” was defective and that an
entity by that name did not exist. Plaintiffs maintained that service was proper and that Acadia’s
refusal to file a response to the Complaint had placed them in default. At that time, the parties
had not filed any motions alleging defective service or default. Accordingly, the Court did not
address the issue when ruling on the Motions to Dismiss filed by the other Defendants. The
Motions to Dismiss were granted (ECF No. 36) and Acadia remained a Defendant in the case.
After the Motions to Dismiss were granted, this case languished for many months.
Plaintiffs made no attempts to correct any alleged defect in service or pursue a default judgment,
and Acadia filed no motion to dismiss for insufficient service of process. On January 15, 2014,
the clerk entered a Notice of Default Procedure. (ECF No. 39). The notice stated: “Although
there is proof of service of process in the file, the following defendant(s) have failed to plead or
otherwise defend the claim of the plaintiff(s) in the prescribed time: Acadia Healthcare of TN.”
Plaintiffs were directed to file an affidavit in support of default and a motion for default
judgment within 14 days of the notice.
On January 29, 2014 Plaintiffs filed their affidavit in support of default but failed to file a
motion for default judgment within the prescribed time. On February 4, Acadia filed a Motion to
Strike Plaintiffs’ Affidavit in Support of Default. (ECF No. 41). Acadia argued in its Motion to
Strike that Plaintiffs had attempted service on a non-existent entity “Acadia Healthcare of

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Tennessee” when it appears that they intended to serve Acadia Healthcare Company, Inc.
Acadia also argued that the manner of service was improper. Acadia’s motion requested that the
Court strike Plaintiffs’ affidavit in support of default and the purported return of service filed by
Plaintiffs on “Acadia Healthcare of Tennessee.” (ECF No. 27). In response to Acadia’s motion,
Plaintiffs expressed their intent to request leave to file an amended complaint naming Acadia
Healthcare Inc. as defendant in this matter. (ECF No. 44). While Plaintiffs filed a motion to
amend on March 31, 2014, the document was struck due to improper filing. The motion to
amend has never been re-filed.
Because Plaintiffs had not actually filed a Motion for Default Judgment as directed, the
Court refrained from ruling on Acadia’s Motion to Strike. On May 8, 2014, the Court issued an
Order (ECF No. 48) directing Plaintiffs to show cause why they failed to move for default within
the prescribed time. Rather than responding directly to the order to show cause, Plaintiffs filed
the present Motion for Default Judgment. Plaintiffs’ motion states that they “inadvertently
overlooked the filing of the actual Motion for entry of a Default Judgment.” (ECF No. 49, p. 1).
Acadia filed a response in opposition to the Motion for Default and incorporated the
arguments made in its Motion to Strike. Acadia argues that Plaintiffs are not entitled to default
because (1) Plaintiffs have not shown good cause for their delay in filing the Motion for Default
and (2) Acadia has never been properly served.
First, Acadia is correct in pointing out at that Plaintiffs have not shown good cause for
the delay in filing their Motion for Default.

Plaintiffs’ excuse that they “inadvertently

overlooked” the filing of the motion is wholly inadequate without further explanation.
Accordingly, the Motion for Default could be denied as untimely filed. Nonetheless, the Court
will address the merits of the motion.

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Acadia claims that an entry of default is inappropriate because Plaintiffs failed in their
attempt to serve Acadia. First, Acadia claims that the summons was deficient because it was
addressed to “Acadia Healthcare of Tennessee,” a non-existent entity, rather than Acadia
Healthcare Company, Inc. Second, Acadia argues that, even if Plaintiffs had named the correct
Defendant, service was deficient because Plaintiffs did not address the summons to a natural
person.
Because the misnomer issue is irrelevant if there has not been proper service of process,
the Court will first address Plaintiffs’ method of service.

Plaintiffs attempted to serve a

summons addressed to “Acadia Healthcare TN” via certified mail on July 24, 2012. The
summons and Amended Complaint were received by Gail Trudell. On the return receipt, there
was a box checked indicating that Gail Trudell was an “agent” of the addressee. Acadia
maintains that there was no one by the name of Gail Trudell employed by Acadia Healthcare
Company, Inc. at that time. However, Acadia’s arguments are not focused on Trudell’s agent
status or lack thereof. Rather, Acadia argues that Plaintiffs’ service was insufficient because
they addressed the service papers to “Acadia Healthcare TN” rather than a natural person. The
Court agrees.
Rule 4(h) of the Federal Rules of Civil Procedure requires a corporation to be served
either in a manner prescribed for personal service of an individual under Rule 4(e)(1); or by
“delivering” a copy of the summons and complaint “to an officer, a managing or general agent,
or any other agent authorized by appointment or by law to receive service of process[.]” Fed. R.
Civ. P. 4(h). It is well settled that the use of certified mail is not sufficient to constitute
“delivering” under Rule 4(h)(2). Larsen v. Mayo Med. Ctr., 218 F.3d 863, 868 (8th Cir. 2000);
Dyer v. Wal-Mart Stores, Inc., 318 F. App'x 843, 844 (11th Cir. 2009). Rule 4(h)(2) requires

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personal delivery rather than mail delivery. Id. Accordingly, Plaintiffs’ attempted service by
certified mail does not satisfy the requirements for serving a corporation under Rule 4(h)(2).
Plaintiffs must now fall back on the requirements for service of an individual under Rule
4(e)(1). Rule 4(e)(1) allows a party to be served “following state law for serving a summons in
an action in courts of general jurisdiction in the state where the district court is located or where
service is made.” Accordingly, Plaintiffs are required to properly effect service under either
Arkansas or Tennessee law. Both Arkansas and Tennessee require service on a corporation to be
made by delivering the summons and complaint to an officer, managing or general agent, or any
agent authorized by appointment or by law to receive service of summons. Ark. R. Civ. P.
4(d)(5); Tenn. R. Civ. P. 4.04(4). Importantly, under both Arkansas 1 and Tennessee 2 law, the
summons and complaint must be addressed to a specified natural person.
Because Plaintiffs’ service papers were not addressed to a natural person, Plaintiffs’
attempt at service on “Acadia Healthcare of Tennessee” and/or “Acadia Healthcare Company,
Inc.” was ineffective. See Broadway v. adidas Am., Inc., 3:07CV000149, 2008 WL 2705566 at
*3 (E.D. Ark. July 10, 2008) (“[T]his attempt at service was defective because the…service
papers enclosed therewith were not addressed to an addressee or agent of the addressee that is a
natural person. The requirements under Ark. R. Civ. P. 4, being in derogation of common law,

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See Ark. R. Civ. P. 4(d)(8)(A)(i) (“Service of a summons and complaint upon a defendant of any class
referred to in paragraphs (1) through (5), and (7) of this subdivision (d) may be made . . . by any form of
mail addressed to the person to be served with a return receipt requested and delivery restricted to the
addressee or the agent of the addressee. The addressee must be a natural person specified by name . . . .”)
(emphasis added)
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See Tenn. R. Civ. P. 4.04(10) (“Service by mail of a summons and complaint upon a defendant may be
made by . . . send[ing], postage prepaid, a certified copy of the summons and a copy of the complaint by
registered return receipt or certified return receipt mail to the defendant. If the defendant to be served is
an individual or entity covered by subparagraph (2), (3), (4), (5), (6), (7), (8), or (9) of this rule, the return
receipt mail shall be addressed to an individual specified in the applicable subparagraph.”) (emphasis
added).

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must be strictly followed….”); Grand Slam Stores, L.L.C. v. L & P Builders, Inc., 92 Ark. App.
210, 213, 212 S.W.3d 6, 8 (Ark. App. 2005) (“[Plaintiff] stated that Grand Slam was served by
certified letter…and the letter was addressed to Grand Slam Stores LLC.’ We hold that this does
not comply with our service of process requirements under Ark. R. Civ. P. 4(d)(8), which
requires that an addressee be a ‘natural person specified by name.’ A ‘natural person’ is a
‘human being.’”).
Plaintiffs’ failure to properly serve Acadia is fatal to their request for an entry of default.
Norsyn, Inc. v. Desai, 351 F.3d 825, 829 (8th Cir. 2003) (“[A] defendant is under no duty to
respond to the rules of a court unless he is brought under its jurisdiction through the proper
service of process. Therefore, Defendants could not have been held in default for failure to
answer until properly served by [Plaintiff]”). Accordingly, Plaintiffs’ Motion for Default is
denied. 3
The question now becomes whether this action should be dismissed for insufficient
service of process. Plaintiffs were explicitly put on notice of the potential service deficiencies in
a letter from Acadia dated September 18, 2012. (ECF No. 42, Exh. 1). The issue was also raised
in briefing on the Motions to Dismiss filed in August 2012. In February 2014, Plaintiffs seemed
to acknowledge the deficiencies in their attempted service and stated that they intended to file a
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While it is not necessary for the Court to address Acadia’s misnomer arguments in light of the
insufficient service of process, Acadia’s arguments are well taken. It is undisputed that “Acadia
Healthcare of Tennessee” does not exist, and it is clear that Plaintiffs intended to sue Acadia Healthcare
Company, Inc. When a plaintiff has served the correct defendant but has misnamed the defendant in the
summons and complaint, a court may dismiss the action without prejudice or allow an amendment to the
complaint to correct the misnomer. Roberts v. Michaels, 219 F.3d 775, 778 (8th Cir.2000) (explaining
misnomer principle). The burden is on the plaintiff to seek leave to amend her complaint. Hughes v.
Auto-Owners Ins. Co., 4:11-CV-979, 2011 WL 2601519 (E.D. Mo. June 30, 2011).
In this case, Plaintiffs were put on notice of the misnomer almost two years ago. They have
acknowledged that “Acadia Healthcare of Tennessee” is not a legal entity. (ECF No. 44). Over five
months ago, Plaintiffs stated their intent to amend their Amended Complaint to correct the error, but they
have not yet taken the necessary steps to do so. Accordingly, the Court would be justified in denying
Plaintiffs’ motion for default and dismissing this action without prejudice on these independent grounds.

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motion to amend their Amended Complaint. (ECF No. 44, p. 13). To date, Plaintiffs have not
successfully attempted to amend their Amended Complaint.
Federal Rule of Civil procedure 4(m) provides that a Court must dismiss an action
without prejudice “[i]f a defendant is not served within 120 days after the complaint is
filed….But if the plaintiff shows good cause for the failure, the court must extend the time for
service for an appropriate period.” In this case, Plaintiffs have clearly failed to effect service
within 120 days of filing their Amended Complaint. Plaintiffs have been on notice of service
deficiencies for nearly two years. They have refused to make any attempt to address those
deficiencies. Under these circumstances, the Court finds no reason to extend Plaintiffs’ time to
effect service. Accordingly, Plaintiffs’ claims against Acadia are dismissed without prejudice.
CONCLUSION
For the reasons stated above, the Court finds that Plaintiffs’ Motion for Default Judgment
(ECF No. 49) should be and hereby is DENIED. The Court also finds that Plaintiffs’ claims
against Acadia should be and hereby are DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED, this 4th day of August, 2014.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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