Patterson v. Mighty Muffler Shop, Inc. et al
Filing
25
ORDER approving and adopting, with the exception of Section II.D, the 22 Report and Recommendation as the Opinion and Order of this Court. Therefore, Defendants' 12 Motion to Dismiss is DENIED. Plaintiff is granted an extension of time within which to serve Defendants. If Defendants do not acknowledge service of process within 14 days of the entry of this Order, Plaintiff shall have 21 days thereafter in which to serve Defendants. Signed by Judge Richard W. Story on 9/26/11. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CHRISTOPHER PATTERSON
on behalf of himself and all others
similarly situated,
Plaintiff,
v.
MIGHTY MUFFLER SHOP, INC.
and MIGHTY MUFFLER OF
CANDLER ROAD, INC.,
Defendants.
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CIVIL ACTION NO.
1:10-CV-2176-RWS
ORDER
This case is before the Court for consideration of the Final Report and
Recommendation (“R&R”) [22] of Magistrate Judge Linda T. Walker.
Following the issuance of the R&R, Plaintiff filed Objections [23] thereto and
Defendant filed a Reply Brief [24]. After reviewing the entire record, the Court
enters the following Order.
With the exception of Section II.D. of the R&R, the Report and
Recommendation is received with approval and adopted as the Opinion and
Order of this Court. Thus, Plaintiff’s Objections to those portions of the R&R
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that are adopted are OVERRULED. However, with regard to Section II.D, the
Court SUSTAINS Plaintiff’s Objections for the following reasons.
“In actions removed from state court, the sufficiency of service of
process prior to removal is determined by the law of the state from which the
action was removed. After removal, the sufficiency of service of process is
determined according to federal law.” Rentz v. Swift Transp. Co., Inc., 185
F.R.D. 693, 696 (M.D. Ga. 1998) (citing 28 U.S.C. 1448). Specifically, in
cases removed from a state court “in which process served proves to be
defective, such process or service may be completed or new process issued in
the same manner as in cases originally filed in such district court.” 28 U.S.C. §
1448. In those instances, the 120 days within which Federal Rule of Civil
Procedure 4(m) requires service to be perfected begins to run on the date of
removal. Dees v. Washington Mutual Bank, No. 1:10-CV-0045(CAR), 2010
WL 5349865 (M.D. Ga. Dec. 21, 2010).
In the present case, Defendants were served with process while the action
was pending in state court. However, that service was defective under Georgia
law as untimely. Other than the timeliness of the service, the service was not
defective in any other way. After Defendants were served, they removed the
action to this Court, and Plaintiff has made no further attempts at service.
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In his Response to Defendants’ Motion to Dismiss, Plaintiff argued that
even if service were defective under Georgia law, this “Court has the statutory
power [pursuant to 28 U.S.C. § 1448] to correct any defects in service of
process for cases that are removed from state courts.” Pl. Brief [17] at 13.
Plaintiff did not suggest how the defect should be corrected, and thus, the R&R
concluded that the request to correct the defect should be denied. In his
Objections [23] to the R&R, Plaintiff asserted that his request should not have
been denied because he did not propose a specific correction. Objections [23]
at 13. Plaintiff argued that the Court has the inherent power to order that
Defendants be re-served, and therefore, dismissal was not required. Id. at 14.
In their Reply [24] to Plaintiff’s Objections, Defendants cite several cases
in which courts have denied relief pursuant to § 1448 when plaintiffs fail to take
affirmative steps to perfect service within 120 days after removal. Relying on
these cases, Defendants assert that because Plaintiff has made no effort to serve
Defendants after removal, he is not entitled to relief pursuant to § 1448.
However, in each of the cases relied upon by Defendants, the defects in service
in state court went to the actual service on the defendants not merely the
timeliness of that service. In McHaffie v. Wells Fargo Bank, No. 3:10-CV103(CDL), 2011 WL 2174407, (M.D. Ga. June 2, 2011), there was no evidence
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in the record that the defendants were ever served in the state court. Nor did the
plaintiff make any effort to serve the defendants after removal. In Dees v.
Washington Mutual Bank, No. 1:10-CV-0045(CAR), 2010 WL 5349865
(M.D.Ga. Dec. 21, 2010), plaintiff made no attempt to serve one defendant in
state court and as to the other defendant, plaintiff simply faxed a copy of the
complaint to a law firm that was not the agent for service for that defendant.
No attempt at service was made after removal. In Igbinigie v. Wells Fargo
Bank, No. 3:08-CV-58(CDL), 2008 WL 4862597(M.D.Ga. Nov. 10, 2008), the
plaintiff simply mailed a copy of the complaint and a defective summons to
defendant’s Iowa office while the case was pending in state court. No service
was attempted after removal.
As noted above, in the present case the requirements for proper service in
state court were met as to both Defendants, except that the service was not
timely. Had the case been pending in federal court at the time, service would
have been sufficient. Thus, before the case was removed, Plaintiffs had
provided Defendants with all of the notice to which they would have been
entitled under the Federal Rules. The question before the Court is whether
Plaintiff should nonetheless have his claims dismissed. Defendants complain
that they did not receive proper service under the Federal Rules within 120 days
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of removal. As a practical matter, Defendants received notice before removal.
The Court recognizes that Defendants were served with a summons issued by
the state court and technically service was not perfected under the Federal
Rules. However, this places form over substance. While the Court agrees that
Plaintiff should have addressed this issue in a more timely fashion, the Court
does not find that Plaintiff should be denied an opportunity to assert his claims
under these circumstances.
Therefore, Defendants’ Motion to Dismiss [12] is DENIED. Plaintiff is
granted an extension of time within which to serve Defendants. If Defendants
do not acknowledge service of process within 14 days of the entry of this Order,
Plaintiff shall have 21 days thereafter in which to serve Defendants.
SO ORDERED, this 26th day of September, 2011.
_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
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