First Nonprofit Insurance Company v. Neighbor To Family, Inc. et al
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ORDER denying as moot Defendants' 11 Motion to Dismiss. Defendants' 13 Amended Motion to Dismiss is GRANTED. Accordingly, the Georgia Division of Family and Children Services is DISMISSED from this action because it is not a separate legal entity from the Department of Human Services. The Georgia Department of Human Services is DISMISSED without prejudice for insufficient service of process. Signed by Judge Richard W. Story on 3/12/2015. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
FIRST NONPROFIT
INSURANCE COMPANY,
Plaintiff,
v.
NEIGHBOR TO FAMILY, INC.,
GEORGIA DEPARTMENT OF
HUMAN SERVICES, GEORGIA
DIVISION OF FAMILY AND
CHILDREN SERVICES, and
CAIN PEARSON, by and through
his Next Friend, Ari Mathe,
Defendants.
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CIVIL ACTION NO.
1:14-CV-02285-RWS
ORDER
This case comes before the Court on Defendants Georgia Department of
Human Services and Georgia Division of Family and Children Services’
Motion to Dismiss [11] and Amended Motion to Dismiss [13]. After reviewing
the record, the Court enters the following Order.
Background
Plaintiff First Nonprofit Insurance Company (“Plaintiff”) brought this
declaratory action on July 18, 2014 against the Georgia Department of Human
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Services (“DHS”), the Georgia Division of Family and Children Services
(“DFCS”), Neighbor to Family, Inc. (“NTF”), and Cain Pearson, by and
through his Next Friend, Ari Mathe. Plaintiff brought the action in order to
adjudicate the rights and obligations of DHS, DFCS, and NTF under insurance
policies issued to NTF related to a pending lawsuit in the State Court of DeKalb
County, Georgia. (Compl., Dkt. [1].) Defendants DHS and DFCS filed their
Motion to Dismiss [11] on August 25, 2014, alleging improper service,
immunity under the Eleventh Amendment of the U.S. Constitution, and
sovereign immunity under the Georgia Constitution. Defendants superseded
that motion with an Amended Motion to Dismiss [13] on September 2, 2014.
Therefore, the original Motion to Dismiss [11] is DENIED as moot.
Discussion
I.
DFCS’ Motion to Dismiss
As a threshold matter for DFCS, in their Amended Motion to Dismiss,
Defendants argue that DFCS is not a proper defendant because it “is not a legal
entity capable of being sued, but rather a division of DHS.” (Am. Mot.
Dismiss, Dkt. [13] at 3.) Under Georgia law, all county DFCS offices are
“under the direction and supervision of the commissioner [of DHS],” O.C.G.A.
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§ 49-4-3(b), and are therefore “instrumentalities of the State Department of
Human [Services].” Bendiburg v. Dempsey, 707 F. Supp. 1318, 1331 (N.D.
Ga. 1989), aff’d in part and rev’d in part on other grounds, 909 F.2d 463 (11th
Cir. 1990) (finding that statutes governing DFCS “strongly suggest that the
county departments are instrumentalities of the State Department of Human
[Services] rather than separate county entities”). DFCS is thus not a separate
legal entity from DHS because it is an instrumentality of DHS. See also Powell
v. Dep’t of Human Res., 918 F. Supp. 1575, 1578-79 (S.D. Ga. 1996) (finding
that DFCS was created by state law as a division of DHS). Naming both DHS
and DFCS is therefore redundant, and DFCS should be dismissed from this
action.
II.
DHS’ Motion to Dismiss
A.
Insufficient Service of Process
Defendants move for dismissal from this action “due to lack of personal
and subject matter jurisdiction.” (Am. Mot. Dismiss, Dkt. [13] at 3.) The Court
first addresses Defendants’ argument that DHS was not properly served with
process pursuant to Federal Rule of Civil Procedure (“Rule”) 4. Defendants
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argue that Plaintiff never served the Commissioner of DHS as required under
Georgia law.
Under Rule 4(m),
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).
Service of process on state agency defendants like DHS is governed by
Rule 4(j)(2), which provides that plaintiffs must serve a state agency in one of
two ways: “(A) delivering a copy of the summons and of the complaint to its
chief executive officer; or (B) 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.”
Id. Georgia law provides that state agencies must be served by delivering a
copy of the complaint and summons to the agency’s “chief executive officer or
clerk thereof.” O.C.G.A. § 9-11-4(e)(5). Under O.C.G.A. § 49-2-1, the DHS
Commissioner is deemed the “chief administrative officer” of the agency.
O.C.G.A. § 49-2-1(b). Furthermore, O.C.G.A. § 49-2-15 specifies that in suits
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against DHS, “it shall be the duty of the plaintiff to provide for service of notice
of the pendency of such action by providing for service of a second original
process, issued from the court in which the action is filed, upon the
commissioner of human services personally or upon a person designated by the
commissioner in writing to serve as agent for the acceptance of such service of
process.” O.C.G.A. § 49-2-15.
The Court agrees with Defendants that the proper party to serve is the
DHS Commissioner; however, there is no evidence in the record that Plaintiff
attempted to serve the Commissioner of DHS with process. In its attempt to
serve DHS with process, Plaintiff served the administrative clerk to Sam Olens,
Attorney General of Georgia. Though the Georgia Attorney General represents
the State of Georgia in this case, he is not the chief executive officer of DHS or
the clerk thereof. No provision in either Rule 4 or Georgia law authorizes
Georgia’s attorney general to be served process for suit against DHS. Plaintiff
also served two individuals at DFCS, the Liability Program Officer and Director
of Risk Management Division of the Department of Administrative Services,
but these individuals could not accept service on behalf of DHS, either. Finally,
Plaintiff attempted to serve Rachel King, General Counsel of DHS. In an
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affidavit, King states that she was not personally served. (Dkt. [13-2] ¶¶ 4-5.)
While DHS notes that King is authorized to accept service on behalf of the
Commissioner, service on her was invalid because she found the documents in
her administrative inbox but was not personally served. (Defs.’ Br., Dkt. [13-1]
at 7.) Thus, Plaintiff failed to serve DHS.
Plaintiff does not dispute that the individuals it served were not
authorized to receive service under federal or Georgia law, or that King was not
personally served. Instead, Plaintiff insists that service was proper because
DHS had sufficient notice of the suit. (Pl.’s Resp. Opp. Mot. Dismis, Dkt. [23]
at 3.) However, “[a] defendant’s actual notice is not sufficient to cure
defectively executed service.” Albra v. Advan, Inc., 490 F.3d 826, 829 (11th
Cir. 2007). Plaintiff also argues that under Rule 4(m) the Court can extend the
period of time for service for good cause. (Pl.’s Resp. Opp. Mot. Dismis, Dkt.
[23] at 3-4.)
“Good cause exists ‘when some outside factor, such as reliance on faulty
advice, rather than inadvertence or negligence, prevented service.’ ” Rance v.
Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286 (11th Cir. 2009) (quoting
Lepone-Dempsey v. Carroll Cnty. Comm’rs, 476 F.3d 1277, 1280 (11th Cir.
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2007)). Even if the Court finds that Plaintiff has failed to show good cause, the
Court “must still consider whether any other circumstances warrant an
extension of time based on the facts of the case.” Id. (internal quotation marks
omitted). Therefore, “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.”
Horenkamp v. Van Winkle and Co., 402 F.3d 1129, 1132 (11th Cir. 2005).
While Plaintiff asks the Court to grant an extension of time to cure
Plaintiff’s insufficient service under Rule 4(m), Plaintiff does not point to any
factors showing good cause for its failure to perfect service. After Defendants
pointed out that Plaintiff failed to serve the DHS Commissioner, which Plaintiff
does not appear to dispute, nothing in the record indicates Plaintiff took any
steps to cure its defective service within the 120-day period provided by Rule
4(m). The Court finds no other circumstances that would warrant granting an
extension of time. Therefore, Defendant DHS’ Motion to Dismiss [13] is
GRANTED for insufficient service of process.
B.
Immunity From Suit
Defendants also argue they should be dismissed from this action because
Plaintiff’s claim against them is barred by Eleventh Amendment immunity
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under the U.S. Constitution and sovereign immunity under Georgia law. (Am.
Mot. Dismiss, Dkt. [13] at 8.) Having found that DFCS is not an entity capable
of being sued and that DHS is due to be dismissed from the action based on
insufficient service of process, the Court does not reach Defendants’ immunity
arguments in this case.
Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss [11] is
DENIED as moot. Defendants’ Amended Motion to Dismiss [13] is
GRANTED. Accordingly, the Georgia Division of Family and Children
Services is DISMISSED from this action because it is not a separate legal
entity from the Department of Human Services. The Georgia Department of
Human Services is DISMISSED without prejudice for insufficient service of
process.
SO ORDERED, this 12th
day of March, 2015.
_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
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