IDAHOSA v. COLUMBUS GEORGIA et al
Filing
17
ORDER denying 7 Motion to Dismiss Complaint; granting 13 Motion to Amend Complaint and Motion for Extension of Time for Service Ordered by US DISTRICT JUDGE CLAY D LAND on 6/2/2016 (nmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
ROBERT O. IDAHOSA,
*
Plaintiff,
*
vs.
*
COLUMBUS, GEORGIA, et al.,
*
Defendants.
CASE NO. 4:15-CV-209-CDL
*
O R D E R
This action arises from a traffic citation that escalated
into several encounters between Plaintiff Robert O. Idahosa and
local
officials
proceeding
in
pro
se,
Richland
sues
and
the
Columbus,
City
of
Georgia.
Richland,
Idahosa,
Columbus
Consolidated Government (“CCG”), the Columbus Police Department,
the Muscogee County Jail, several city and county officials in
their
individual
and
official
capacities,
and
Pioneer
Credit
Recovery, Inc. (“Pioneer”), a private company that the City of
Richland contracted with to collect a traffic citation fine from
Idahosa.
Idahosa alleges that Defendants violated his rights
under the Constitution, the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq. (“ADA”), the Rehabilitation Act of 1973,
29 U.S.C. § 701 et seq., and Georgia state law.
the
Court
is
Pioneer’s
motion
to
dismiss
Pending before
for
insufficient
service of process and failure to state a claim (ECF No. 7).
In
response to Pioneer’s motion to dismiss, Idahosa alleges new
facts and claims against Pioneer under the Fair Debt Collection
Practices Act, 15 U.S.C. 1692 et seq. (“FDCA”) (ECF No. 9).
In
light of Idahosa’s pro se status, the Court construes Idahosa’s
response as a motion to amend his complaint.
Idahosa also filed
a motion to perfect service by waiver, which the Court construes
as a motion for an extension of time to serve Defendants (ECF
No. 13).
The Court finds that Idahosa should be allowed to
amend his complaint and be given an extension of time within
which
to
accomplish
service
of
it.
Accordingly,
Pioneer’s
motion to dismiss is denied.
FACTUAL ALLEGATIONS
Idahosa alleges the following facts in his complaint and
response to Pioneer’s motion to dismiss.
In
July
2012,
Richland, Georgia.
on
Idahosa
received
a
traffic
citation
in
He pled no contest to the charge and paid a
$224.00
fine
May
started
contacting
1,
2013.
Idahosa.
Shortly
Pioneer
before 8:00 a.m. and after 9:00 p.m.
demand letters to Idahosa.
thereafter,
called
Pioneer
Idahosa’s
home
Pioneer also sent several
The letters state that the City of
Richland contracted with Pioneer to collect a debt that Idahosa
owes Richland.
Idahosa contacted Pioneer in writing and by
phone several times and explained that he does not owe a debt to
2
Richland.
He has asked Pioneer to stop contacting him, but
Pioneer has not stopped.
On December 25, 2013, Idahosa and his friend, who are both
black,
were
driving
neighborhood.
Department
Officer
pulled
suspicious.”
through
Idahosa’s
William
Idahosa
Love
over
Compl. ¶ 22.
predominantly
of
the
because
Columbus
he
Police
“look
[sic]
Idahosa asked Officer Love, who is
white, if he pulled Idahosa over because he is black.
Love did not respond.
white
Officer
Officer Love eventually issued Idahosa a
citation for driving with a suspended license and instructed
Idahosa’s friend to drive him home.
Later that month, Idahosa
called the Richland Municipal Court Clerk’s office to find out
why his license was suspended.
He was told that the Richland
Clerk, Wanda Wilson, was on vacation overseas and could not help
him.
Idahosa’s
court
date
for
the
driving
with
a
suspended
license citation was at 9:00 a.m. on February 10, 2014.
Idahosa
did
not
arrive
at
the
court
house
until
But
between
9:30 a.m. and 10:00 a.m. because he could not read the time that
Officer Love wrote on the citation.
female
clerk
in
the
Columbus
When he arrived, a white
Recorder’s
Court
office
told
Idahosa that he had missed his hearing and that a bench warrant
was issued for his arrest.
The clerk informed Idahosa that his
bond was $1,000 and that he could call someone to post the full
3
bond plus costs or post 10% of the bond in cash.
unable to contact anyone to post bond.
Idahosa was
He had $322.00 cash and
a credit card with him and attempted to post his own bond.
The
clerk told Idahosa that he could not post his own bond.
She
called
a
sheriff
deputy
to
arrest
him.
The
sheriff
deputy
handcuffed Idahosa and took him to jail.
During the jail booking process, Idahosa told deputies and
jail nurses about his medical conditions.
Idahosa has diabetes,
hypertension, high cholesterol, arteritis, and a painful heart
murmur.
Idahosa urged jail nurses several times that he needed
food and medication because of his diabetes.
never provided Idahosa with either.
from jail until after midnight.
The jail nurses
Idahosa was not released
As a result of not having any
food or his diabetes medication for almost a full day, Idahosa
suffered
a
diabetic
episode
with
sweating,
dizziness,
and
a
blood sugar level of over 400.
Idahosa went to court again for the driving on a suspended
license citation on February 19, 2014.
driving
without
a
license
and
He was charged with
contempt
appearing at his first hearing.
of
court
for
not
The court found Idahosa not
guilty of contempt but guilty of driving without a license.
Idahosa
was
probation,
sentenced
and
made
to
to
jail
pay
time,
court
community
costs
and
service,
probation
and
fees.
Idahosa tried to file an appeal immediately after the hearing
4
but the Recorder’s Court clerk told him that he had no right to
appeal.
On
Richland
September
Clerk
8,
Wilson
2014,
Idahosa
indicating
received
that
the
a
letter
Richland
from
Clerk’s
office mistakenly reported to the Georgia Department of Motor
Vehicles that Idahosa’s license should be suspended.
Idahosa
took this letter to the Columbus Recorder’s Court clerk’s office
to
ask
for
a
new
trial
on
his
driving
without
a
license
citation, but his request was denied.
Based on these facts,
Idahosa
the
filed
this
action
and
mailed
complaint
to
all
Defendants by certified mail.
RULE 12 (b)(5) MOTION TO DISMISS
I.
Standard
The Court may dismiss a complaint for improper service of
process if the defendants are not served within 90 days after
the complaint is filed.
Fed. R. Civ. P. 4(m) & 12(b)(5).
But
the Court has discretion to extend the time period for service
of process.
See Horenkamp v. Van Winkle & Co., 402 F.3d 1129,
1132 (11th Cir. 2005) (holding that “Rule 4(m) grants discretion
to the district court to extend the time for service of process
even in the absence of a showing of good cause”).
Additionally,
when service has been attempted but is ineffective, the Court
has discretion to quash the ineffective service but allow the
plaintiff additional time to perfect proper service.
5
II.
Discussion
Idahosa did not properly serve Pioneer under Rule 4 within
90
days
of
filing
his
complaint.
Rule
4
provides
that
a
corporate defendant may be served:
by delivering a copy of the summons and of the
complaint to an officer, a managing or general agent,
or any other agent authorized by appointment or by law
to receive service of process and—if the agent is one
authorized by statute and the statute so requires—by
also mailing a copy of each to the defendant[.]
Fed.
R.
complaint
Civ.
P.
4(h)(1)(B).
requires
designated agent.
“Delivering”
personal
service
on
the
the
summons
and
corporation’s
Dyer v. Wal-Mart Stores, Inc., 318 F. App’x
843, 844 (11th Cir. 2009) (per curiam).
Here, Idahosa attempted
to serve Pioneer by sending a copy of his complaint to Pioneer
by
certified
mail.
Thus,
Idahosa’s
service
is
insufficient
under Rule 4(h).
Rule
4
also
provides
that
a
plaintiff
may
serve
a
corporation using a method of service allowed in the state where
the district court is located or where service is made.
318 F. App’x at 844; Fed. R. Civ. P. 4(e)(1).
Dyer,
This Court is
located in Georgia and Pioneer was served in Florida.
Neither
Georgia nor Florida allows service by certified mail without a
waiver.
O.C.G.A.
§ 9-11-4(e)(1)(A)
(providing
that
a
corporation must be served by delivering a copy of the summons
and
complaint
to
a
managing
or
6
registered
agent
of
the
corporation or the Georgia Secretary of State);
Dyer, 318 F.
App’x at 844 (acknowledging that Florida Rule of Civil Procedure
1.070(i) only allows service by mail if the defendant agrees to
waive personal service).
Thus, Idahosa’s attempted service on
Pioneer is ineffective.
Nevertheless,
dismissal
is
not
warranted
here.
Idahosa
asked the Court for an opportunity to seek a waiver of service
from Defendants under Rule 4(d).
Pl.’s Resp. to Mot. to Dismiss
14, ECF No. 9; Pl.’s Mot. to Perfect Service, ECF No. 13.
And
Idahosa has not been dilatory or negligent in attempting to
serve Pioneer.
Pioneer
by
Moreover,
Rather, Idahosa genuinely believed that serving
certified
Pioneer
is
mail
not
complied
with
prejudiced
by
the
Federal
untimely
Rules.1
service.
Pioneer states that on February 2, 2016, it received a copy of
the summons and complaint via certified mail.
Although this
“actual notice is not sufficient to cure defectively executed
service,” Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir.
2007) (per curiam), the fact that Pioneer received prompt notice
of this action favors allowing Idahosa another opportunity to
attempt
to
serve
Pioneer.
Accordingly,
1
the
Court
quashes
Idahosa argues that he personally served Pioneer because the “Post
Master” who perfected service on Pioneer was “over 18 years old” and
“not a party” to this action. Pl.’s Resp. to Mot. to Dismiss 8, ECF
No. 9.
Additionally, Idahosa thought, albeit mistakenly, that the
Georgia and Florida rules allowed service by certified mail.
7
Idahosa’s ineffective service and grants an extension of time
for service, as specified below.
MOTION TO AMEND AND 12(b)(6) MOTION TO DISMISS
I.
Standard
“The court should freely give leave [to amend] when justice
so requires.”
Fed. R. Civ. P. 15(a)(2).
not,
allow
however,
futile.”
“A district court need
amendment . . . where
amendment
would
be
Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001)
(per curiam).
“Generally, ‘[w]here a more carefully drafted
complaint might state a claim’” on which relief may be granted,
amendment is not futile and “a plaintiff must be given at least
one chance to amend the complaint before the district court
dismisses the action with prejudice.”
Id. (quoting
Bank v.
Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991)).
To overcome the futility obstacle for a motion to amend,
the proposed complaint should meet the standard for surviving a
motion
to
dismiss,
which
is
that
“a
complaint
must
contain
sufficient factual matter, accepted as true, to ‘state a claim
for relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)(quoting Bell Atl. v. Twombly, 550 U.S.
544, 570 (2007)).
The factual allegations must be sufficient
“to raise a right to relief above the speculative level . . . on
the assumption that all the allegations in the complaint are
true (even if doubtful in fact).”
8
Twombly, 550 U.S. at 555.
Thus, “a well-pleaded complaint may proceed even if it strikes a
savvy judge that actual proof of those facts is improbable.”
Id. at 556.
II.
Discussion
Pioneer argues that Idahosa did not state a claim against
Pioneer
under
the
United
States
Constitution,
the
ADA,
the
Rehabilitation Act, or Georgia law and that amendment to add
claims against Pioneer under the Fair Debt Collection Practices
Act is futile.
him
before
But Idahosa’s allegations that Pioneer called
8:00
a.m.
and
after
9:00
p.m.
and
that
Pioneer
continued to contact him after he asked Pioneer to stop arguably
state
claims
under
the
FDCPA.
See
15
U.S.C.
§ 1692c(a)(1)
(prohibiting calls before 8:00 a.m. and after 9:00 p.m.); 15
U.S.C. § 1692c(c) (providing that if a consumer notifies a debt
collector in writing that the consumer wishes the debt collector
to
cease
communications,
communications
with
the
limited
debt
collector
exceptions).
must
Thus,
cease
allowing
amendment to add these allegations and claims is not futile.
Pioneer also contends that Idahosa’s complaint is a fatally
defective “shotgun pleading” because Idahosa does not specify
which claims he asserts against which Defendants.
But, given
Idahosa’s pro se status and indication that he wishes to clarify
his complaint, the Court will give Idahosa an opportunity to fix
that deficiency.
The Court notes that Defendant Darr has also
9
filed a motion to dismiss.
ripe,
Idahosa
should
Although that motion is not yet
consider
whether
his
amended
complaint
should also include additional allegations against any of the
other Defendants in order to state his claims in this action
more clearly.
Idahosa should file an amended complaint, adding his FDCA
claims against Pioneer and specifying which claims he asserts
against
which
Defendants,
within
21
days
of
today’s
Order.
Idahosa shall have 60 days after filing his amended complaint to
properly
serve
his
amended
complaint
on
all
Defendants
as
required by law.
The Court emphasizes that unless a Defendant
expressly
personal
waives
service,
Idahosa
must
serve
that
Defendant personally pursuant to Rule 4 and other applicable
law.
CONCLUSION
For the reasons stated above, the Court denies Pioneer’s
motion to dismiss (ECF No. 7) and grants Idahosa’s construed
motion for an extension of time for service (ECF No. 13) and
construed motion to amend (ECF No. 9).
Idahosa shall file his
amended complaint within 21 days of today’s Order.
Idahosa
shall properly serve his amended complaint on all Defendants
within 60 days after filing it.
10
IT IS SO ORDERED, this 2nd day of June, 2016.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
11
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