Aaron v. Gwinnett County School District
Filing
14
OPINION AND ORDER that the Defendants' 7 Motion to Dismiss for insufficient service of process is GRANTED. IT IS FURTHER ORDERED that the remaining Motions pending in this matter are DENIED AS MOOT. IT IS FURTHER ORDERED that this action is DISMISSED WITHOUT PREJUDICE. Signed by Judge William S. Duffey, Jr on 8/19/2014. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DOROTHY AARON,
Plaintiff,
v.
1:14-cv-00408-WSD
GWINNETT COUNTY SCHOOL
DISTRICT, J. ALVIN WILBANKS,
CEO, and GWINNETT COUNTY
BOARD OF EDUCATION.
Defendants.
OPINION AND ORDER
This matter is before the Court on the Defendants’ Joint Motion to Dismiss
the Complaint for insufficient service of process, and failure to state a claim
against Defendants Gwinnett County School District (“GCSD”), Gwinnett County
Board of Education (“GCBE”), and J. Alvin Wilbanks, the Superintendent of the
GCSD (“Wilbanks”) [7].
I.
BACKGROUND
On November 8, 2013, Plaintiff Dorothy Aaron (“Plaintiff”) filed a
Complaint against GCSD in the Superior Court of Gwinnett County, Georgia, in
which she alleged that GCSD was liable for personal injuries sustained by her
daughter in two school bus accidents that occurred on November 11, 2011, and
November 14, 2011. On January 9, 2014, Plaintiff amended her Complaint in the
state court action to add GCBE and Wilbanks as additional defendants, and
asserted claims, against GCSD, GCBE and Wilbanks, under 42 U.S.C. § 1983,
42 U.S.C. § 1985, Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et
seq.), Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), Title II
of the Americans with Disabilities Act (42 U.S.C. § 12131 et seq.), the Individuals
with Disabilities Education Act (20 U.S.C. § 1400 et seq.), Title IX of the Civil
Rights Act (20 U.S.C. § 1681, et seq.) and Section 504 of the Rehabilitation Act
(29 U.S.C. § 794.).
Plaintiff contends that her daughter is a special needs child, who was not
restrained in a seat belt at the time of the accidents, and that Defendants are
responsible for her daughter’s injuries because they allegedly failed to enact
policies or training programs to accommodate her daughter’s disability.
On February 11, 2014, the Defendants filed a Notice of Removal, and
removed the state court action to this Court. On February 18, 2014, Defendants
moved to dismiss the Plaintiff’s Complaint for insufficient service of process, and
2
for failure to state a claim upon which relief can be granted.1 Defendants argue
that Plaintiff failed to make proper service on GCSD because Plaintiff served the
Amended Complaint on the clerk of the GCSD’s Chief Executive Officer, but in
doing so did not include a summons with the Amended Complaint. Defendants
also argue that Plaintiff failed to make proper service on GCBE and Wilbanks
because she did not serve them with the summons or the Amended Complaint.
On March 31, 2014, Plaintiff filed a document entitled “Rep[ly] to the
Defendants’ Informal Answer and Pre-requests [sic] Motion to Amend her
Complaint due to Improper Service,” in which she acknowledged her failure to
serve the Defendants, but stated that she requested the Defendants to waive service
of a summons [12]. To date, Plaintiff has not served any Defendant in this action,
and no Defendant has waived service of a summons.2
1
“Valid service is a prerequisite for a federal court to assert personal jurisdiction
over a defendant.” Bailew v. Mortgage Serv. Corp., 491 F. App’x 25, 26 (11th Cir.
2012). Because the Court concludes that Plaintiff did not effectuate proper service
on the Defendants in this action, the Court does not have personal jurisdiction over
the Defendants, and this case is required to be dismissed without prejudice.
Accordingly, Defendants’ Motion to Dismiss the Complaint for failure to state a
claim is DENIED AS MOOT. See id. (affirming the dismissal of plaintiff’s
Complaint for insufficient service of process, and rejecting the plaintiff’s argument
that the district court should have examined its subject-matter jurisdiction before
dismissal because there was no personal jurisdiction over the defendants).
2
Rule 4(d) of the Federal Rules of Civil Procedure and O.C.G.A. § 9-11-4(d)
impose a duty on an individual, corporation or association, to avoid unnecessary
3
II.
DISCUSSION
A.
Legal Standard
Rule 12(b)(4) and (5) of the Federal Rules of Civil Procedure permit
dismissal of a complaint for insufficient process and insufficient service of process,
respectively. Fed. R. Civ. P. 12(b)(4), (5).
The requirements for process and service of process are provided for in
Federal Rule of Civil Procedure 4. Rule 4(c) requires that a summons must be
served with a copy of the complaint, and the plaintiff is responsible for having the
summons and complaint served within the time allowed by Rule 4(m). Fed. R.
Civ. P. 4(c)(1). Rule 4(m) states:
If a defendant is not served within 120 days after the complaint is
filed, the court–on motion or on its own after notice to the plaintiff–
must dismiss the action without prejudice against that defendant or
order that service be made within a specified time. But if the plaintiff
shows good cause for the failure, the court must extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m). When a case is removed from state court, courts have
generally held that the 120-day period for perfecting service of process begins at
expenses of serving the summons, and allow a plaintiff to notify such defendants
that an action has been commenced and request that these defendants waive service
of a summons. These rules do not impose a duty on a federal or state
governmental organization to avoid unnecessary expenses of having the plaintiff
serve the summons along with the complaint, and thus the Defendants in this
matter are under no duty to waive service.
4
the time of removal. See, e.g., Buckley v. Bayrock Mortg. Corp., No. 1:09-CV1387, 2010 WL 476673, at *4 n.6 (N.D. Ga. Feb. 5, 2010); Igbinigie v. Wells
Fargo Bank, N.A., No. 3:08-CV-58, 2008 WL 4862597, at *2 (M.D. Ga. Nov. 10,
2008). Where service was unsuccessful before removal, the district court may
issue a new summons for the plaintiff. See 28 U.S.C. § 1447(a).
Rule 4(e) provides that an individual may be served by:
(1) following state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the district court is
located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to
the individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual
place of abode with someone of suitable age and discretion
who resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e). Similarly, Georgia law requires service to be made upon the
defendant personally, or at his residence, or upon his agent. O.C.G.A.
§ 9-11-4(e)(2), (7).
Rule (4)(j)(2) of the Federal Rules provides that a State, a municipal
corporation, or any other state-created governmental organization that is subject to
suit must be served by:
(A) delivering a copy of the summons and of the complaint to its
chief executive officer; or
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(B) by serving a copy of each in the manner prescribed by that
state’s law for serving a summons or like process on such a
defendant . . . .
Fed. R. Civ. P. 4(j)(2). Under Georgia law, a plaintiff serves process on a School
District or on the County Board by delivering a copy of the summons and
complaint “to the chief executive officer or clerk thereof.” O.C.G.A.
§ 9-11-4(e)(5); see Foskey v. Vidalia City School, 574 S.E.2d 367, 372 (Ga. Ct.
App. 2002) (applying O.C.G.A. § 9-11-4(e)(5) to the Vidalia City School District
and the Vidalia City Board of Education).
Ultimately, a plaintiff is responsible for timely serving process on the
defendant. Anderson v. Osh Kosh B’Gosh, 255 F. App’x 345, 347 (11th Cir.
2006) (“A plaintiff is responsible for serving the defendant with both a summons
and the complaint within the time permitted under Rule 4(m).”). The Eleventh
Circuit has held that “service of process that is not in ‘substantial compliance’ with
the requirements of the Federal Rules is ineffective to confer personal jurisdiction
over the defendant, even when a defendant has actual notice of the filing of the
suit.” Abele v. City of Brooksville, Fla., 273 F. App’x 809, 811 (11th Cir. 2008)
(citing Prewitt Enters., Inc. v. Org. of Petroleum Exp. Countries, 353 F.3d 916, 925
(11th Cir. 2003)). When a defendant challenges service of process, “the serving
party bears the burden of proving its validity or good cause for failure to effect
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timely service.” Sys. Signs Supplies v. U.S. Dep’t of Justice, 903 F.2d 1011, 1013
(5th Cir. 1990).
While courts “are to give liberal construction to the pleadings of pro se
litigants,” such generosity does not excuse pro se litigants from failing “to conform
to procedural rules.” Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007)
(quotes and cite omitted); see also Nelson v. Barden, 145 F. App’x 303, 311 n.10
(11th Cir. 2005) (quoting Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998)) (dismissing pro se litigant’s case for failure to effect timely service of
process because “a [party’s] pro se status in civil litigation generally will not
excuse mistakes he makes regarding procedural rules”). Plaintiff is required to
comply with the procedural rule here, and any “[f]ailure to understand Rule 4(m)
does not excuse [her] failure to provide timely service.” Cain v. Abraxas, 209
F. App’x 94, 96 (3rd Cir. 2006).
B.
Analysis
Plaintiff was required to perfect service of process on Defendants by, at the
latest, June 10, 2014.3 The filing of Defendants’ Notice of Removal and their
Motion to Dismiss put Plaintiff on notice of the alleged defects in service.
3
Under Rule 4(m) of the Federal Rules of Civil Procedure, the 120 day period
expired on Tuesday, June 10, 2014.
7
Plaintiff failed to properly serve Defendant GCSD because she did not serve
a copy of the summons with the copy of the Amended Complaint that was
delivered to the clerk of the Chief Executive Officer of GCSD. [1 at Ex. 8]. Rule
4(c) requires that a copy of the summons must be served along with a copy of the
complaint to each defendant. Turner v. United States, 203 F. App’x 952, 954 (11th
Cir. 2006). Plaintiff did not make service of process on GCSD because GCSD was
not served with a summons. See id. (finding that although a pro se plaintiff
properly served the complaint on the defendant, he did not include a summons,
“thereby failing to effect service pursuant to Rule 4.”). To date, Plaintiff has not
personally served Defendant Wilbanks in accordance with Rule 4(e) of the Federal
Rules of Civil Procedure and O.C.G.A. § 9-11-4(e)(2), and Plaintiff has not served
GCBE by delivering a copy of the summons and the Amended Complaint to its
Chief Executive Officer or clerk, in accordance with Rule 4(j)(2) and O.C.G.A.
§ 9-11-4(e)(5).
Because Plaintiff failed to perfect service on any of the Defendants within
the 120 days allowed by Rule 4(m) of the Federal Rules of Civil Procedure, and
has failed to show cause or attempted to show cause for this failure, Defendants are
required to be dismissed.
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III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that the Defendants’ Motion to Dismiss for
insufficient service of process is GRANTED [7].
IT IS FURTHER ORDERED that the remaining Motions pending in this
matter are DENIED AS MOOT.
IT IS FURTHER ORDERED that this action is DISMISSED WITHOUT
PREJUDICE.
SO ORDERED this 19th day of August 2014.
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