Lott v. Estate of Laurraine Goreau et al

Filing 23

OPINION AND ORDER that Plaintiff shall properly serve the Defendants, as required by the Federal Rules of Civil Procedure or Georgia law, and shall, on or before January 26, 2015, serve each defendant with Plaintiff's summons and complaint an d file proof of service on each defendant served, as required by Rule 4(l) of the Federal Rules of Civil Procedure. Failure to serve the Defendants and file the required proofs of service on or before January 26, 2015, will result in the dis missal of this action. IT IS FURTHER ORDERED that all motions pending in this action are DENIED AS MOOT, and this case is STAYED until the Plaintiff provides proof that he has properly served the Defendants. Plaintiff shall not file any additi onal motions or other pleadings in this action unless he files a Request to File Pleading in which he describes the pleading he seeks to file and the reason the Court should lift the stay to allowing the pleading to be filed. Signed by Judge William S. Duffey, Jr on 11/7/2014. (anc)

on September 26, 2014, denied Plaintiff’s Motion for a Temporary Restraining
Order, and Ordered the Plaintiff to properly serve the Defendants before the Court
considered whether to hold another hearing to determine whether Plaintiff is
entitled to injunctive relief. On October 17, 2014, the Devillier Defendants
answered the Complaint. The Devillier Defendants contend that they have not
been properly served with the Complaint under Rule 4 of the Federal Rules of
Civil Procedure because Plaintiff mailed the Complaint to Anne Devillier on
October 3, 2014. To date, the remaining Defendants in this action have not
appeared or answered the Complaint, and Plaintiff has not provided the Court with
proof that any Defendant has been properly served under the Federal Rules of Civil
Procedure or Georgia law.
Rule 4(e) of the Federal Rules of Civil Procedure requires personal service
on an individual defendant, which can be accomplished by 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 individuals 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.

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Fed. R. Civ. P. 4(e)(2)(A)-(C).1 Proper service of process on the Estate of a
decedent requires personal service on the personal representative or administrator
of the decedent’s estate, as required by Rule 4(e) of the Federal Rules of Civil
Procedure and O.C.G.A. § 9-11-4. See Grandbouche v. Lovell, 913 F.2d 835, 837
(10th Cir. 1990); Anderson v. Bruce, 548 S.E.2d 638, 640-42 (Ga. Ct. App. 2001).
Under Rule 4(h) of the Federal Rules of Civil Procedure, a domestic
corporation can be served by following the requirements of Georgia law, or by
(1) delivering a copy of the summons and of the complaint to an officer, a
managing or general agent, or any other agent authorized to 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. Civ. P. 4(h)(1)(A)-(B).
Plaintiff has not followed the requirements of these rules, including by filing
proof of proper service on any of the Defendants. The return of service forms filed
by Plaintiff indicate only that Plaintiff transmitted the Complaint to the Defendants
unising United Parcel Service of North America, Inc. Unless a defendant waives

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Under Rule 4(e)(1) of the Federal Rules of Civil Procedure, “an individual may
also be served by 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.” Fed. R. Civ. P. 4(e)(1).

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service under Rule 4(d) of the Federal Rules of Civil Procedure, service of process
by mail [or other reliable] service is insufficient to perfect service on a defendant
under the Federal Rules of Civil Procedure and O.C.G.A. § 9-11-4. See
Manufacturers Hanover Trust Co. v. Ponsoldt, 51 F.3d 938, 940 (11th Cir. 1995);
O.C.G.A. § 9-11-4(e). Under Rule 4(m) of the Federal Rules of Civil Procedure,
the Court may dismiss an action, on its own initiative and in its own discretion, if
the plaintiff fails to serve a defendant properly with a summons and complaint
within 120 days of the plaintiff’s filing of his Complaint. Anderson v. Osh Kosh
B’Gosh, 255 F. App’x 345, 347 (11th Cir. 2006).
Accordingly, and for the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff shall properly serve the
Defendants, as required by the Federal Rules of Civil Procedure or Georgia law,
and shall, on or before January 26, 2015, serve each defendant with Plaintiff’s
summons and complaint and file proof of service on each defendant served, as
required by Rule 4(l) of the Federal Rules of Civil Procedure. Failure to serve the
Defendants and file the required proofs of service on or before January 26, 2015,
will result in the dismissal of this action.
IT IS FURTHER ORDERED that all motions pending in this action are
DENIED AS MOOT, and this case is STAYED until the Plaintiff provides proof

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that he has properly served the Defendants. Plaintiff shall not file any additional
motions or other pleadings in this action unless he first files a Request to File
Pleading in which he describes the pleading he seeks to file and the reason the
Court should lift the stay to allowing the pleading to be filed.2

SO ORDERED this 7th day of November, 2014.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

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The Court continues to urge plaintiff to retain counsel to assist in this matter
considering that there is here a pattern of Plaintiff unsuccessfully following the
procedural rules that govern this action.

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