White v. Capio Partners, LLC
Filing
10
ORDER denying 6 Motion to Dismiss; denying 9 Motion for Extension of Time. Signed by Judge J. Randal Hall on 10/13/2015. (thb)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
LEVI WHITE,
*
*
Plaintiff,
*
*
v,
CAPIO PARTNERS,
LLC,
l:15-cv-120
Defendant.
*
*
*
ORDER
Presently before the Court are two motions
The
first
is
Defendant's
motion
to
dismiss
filed too soon.
for
insufficient
service of process and lack of personal jurisdiction.
(Doc. 6).
The
to
second
is
Plaintiff's
until January 12, 2016.
motion
(Doc. 9).
to
extend
the
time
serve
In a case removed to federal
court,
Federal Rule of Civil Procedure 4(m) provides 120 days to
serve
a
Because
dismiss
defendant
that
deadline
the
has
day
not
that
expired,
the
case
was
Defendant's
removed.
motion
to
is denied.
For his part,
his
from
motion
he
Plaintiff appears unaware that when he filed
already
Defendant. Therefore,
had
until
December
4,
2015
to
serve
the Court finds that Plaintiff's requested
extension is unnecessary and denies his motion as well.
I. BACKGROUND
The
following
complaint,
to
that
Defendant's
motion,
serve.
factual
and
Plaintiff
assertions
motion
to dismiss,
Plaintiff's
Levi
come
White,
own
from
Plaintiff's
Plaintiff's
motion
to
proceeding
extend
pro
se,
response
time
filed
complaint against Defendant Capio Partners,
LLC on June 5,
in the Magistrate Court of Richmond County,
Georgia.
Removal,
Doc.
Corporation
registered
Doc.
1,
1,
Ex.
2) .
Service
agent
Ex.
At that time,
Company,
who
for
of
PL's
2;
service
Resp.
Br.,
he
In 2008,
Doc.
8 5 6).
process.
8
was
(Notice
5
6).
He
Defendant's
of
Removal,
found
their
(Def. Br.,
registered
Corporation System,
30361.
supported
by
Doc.
6 at 3) .
agent
for
service
located at 1201 Peachtree
(Id.).
According
Plaintiff's
response
to
Soon after,
Doc.
of
brief,
they
in Georgia,
process
St. NE,
Defendant's
Corporation System has never been attempted.
Br.,
(PL's
But this was a mistake.
registered as a foreign corporation doing business
Georgia
this
Defendant left Georgia and became a Texas limited
liability company.
listing
2015
(Notice of
information on the Georgia Secretary of State's website.
Response Br.,
his
he attempted service on
believed
Doc.
to
as
Atlanta,
brief,
service
CT
on
and
CT
(Id.; PL's Resp.
8).
On July 13,
2015,
unspecified source.
Defendant received this lawsuit from an
(Notice of Removal, Doc. 1 SI 5) .
2
Of course,
learning of a pending lawsuit does not equate
process.
to
And so,
federal
court
to dismiss.
on August 6, 2015,
and,
on
August
in
17th,
filed the
(Id.; Def.'s Mtn. to Dismiss,
short
order.
his complaint.
First,
(Doc.
7) .
two days
Second,
Doc.
September
16th,
Plaintiff
extension to serve Defendant.
instant motion
Plaintiff took three
Plaintiff
amended
Plaintiff filed his response
filed
(Doc.
of
6).
later,
brief in opposition to Defendant's motion.
on
service
Defendant removed the case
After receiving the motion to dismiss,
steps
with
a
(Doc.
8).
motion
9).
for
Finally,
a
120
day
Defendant did not file
a brief in opposition to Plaintiff's motion.
II. DISCUSSION
"A plaintiff is responsible for serving the defendant with
a
summons
[Federal
Carroll
Civ.
P.
and
Rule
Cnty.
the
of
to
Civil
Comr's,
4(c)(1);
sufficient
complaint
476
4(m)).
cure
within
Procedure]
F.3d
"A
1277,
the
4(m)."
executed
allowed
under
Lepone-Dempsey
1280-81
defendant's
defectively
time
(citing
actual
notice
service."
Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007).
Fed.
is
Albra
v.
R.
not
v.
"And although
we are to give liberal construction to the pleadings of pro se
litigants,
Ve
nevertheless have required them
procedural rules.'" Id.
1304
(11th Cir.
2002).
to conform to
(quoting Loren v. Sasser, 309 F.3d 1296,
In
cases
removed
from
state
courts,
the
sufficiency
of
service of process attempted before removal is governed by state
law.
Ga.
See Rentz v. Swift Transp.
1998)
Co., 185 F.R.D.
693, 696
(M.D.
("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.").
has
been
removed
attempts
to
81(c)(1).
case
serve
federal
process.
Additionally,
that Rule
a
to
was
removed
to
989 F.
federal
Ford Motor Co. , No.
n.
4
(N.D.
Ala.
1643364,
2010
Kimbrough v.
at
*1
(M.D.
1137
(4th
ed.
court.
1475,
2013);
1448;
Ritts
1478-79
governs
Fed.
WL
476673,
Fla.
2015)
June
6,
Miller,
("In
v.
R.
Dealers
(N.D.
Ga.
2013 WL
Buckley v.
at
City of Cocoa,
Allen Wright & Arthur R.
§
§
2:12-cv-1086-WKW,
June 25,
l:09-cv-1387-TWT,
2010);
U.S.C.
law
future
Civ.
P.
many courts in this Circuit have found
Supp.
v.
5,
28
federal
4(m)'s 120-day period for service begins upon the day
Credit Corp.,
No.
court,
Once a case
Alliance
1997);
3280325,
Bayrock Mortg.
*4
No.
2006);
n.6
Salle
(N.D.
at
*5
Corp.,
Ga.
Feb.
6:05-CV-471,
2006 WL
see
Charles
also
4B
Federal Practice and Procedure
removed
cases,
the
Rule
4 (m)
time
period starts to run upon removal to the federal district court,
not
the
Court
not
date
agrees
commence
court.
the
action was
that
until
originated in
state
court") .
The
Rule
4(m)'s
120-day service requirement does
the
notice
of
removal
is
filed
in
district
Defendant's motion to dismiss addresses only one aspect of
service:
the
deficiency
on
whom
it
was
served.
Plaintiff
responded in kind by only addressing why he served Defendant's
former
registered
agent.
Neither
party
discussed
whether
the
deadline to serve under Rule 4(m) had expired.
Any
ruling
on
whether
Rule
4(m)'s
deadline
has
passed
necessarily requires the Court to decide whether the previously
attempted
service
was
in
was
the
case
the
sufficiency of
sufficient.
state
court
that
when
service is
As
discussed
Plaintiff
above,
attempted
governed by Georgia
because
service,
law.
In
attempted
to
pertinent part, O.C.G.A. § 9-11-4 (e) provides:
(e)
.
.
.
Service
shall
be
made
by
delivering a copy of the summons attached to
a copy of the complaint as follows:
(1) (A) If the action is against ... a
foreign corporation authorized to transact
business in this state, to the president or
other officer of such corporation or foreign
corporation, a managing agent thereof, or a
registered agent thereof ....
O.C.G.A.
§
9-11-4 (e) (emphasis
added).
Plaintiff
serve Defendant's registered agent; however, he served a former
registered
agent.
Therefore,
as
a
matter
of
Georgia
law,
Plaintiff's attempted service was insufficient.
Having concluded that Plaintiff has yet to properly serve
Defendant,
the Court now turns to whether the deadline to do so
has expired under Rule 4(m) .
As discussed above, because this
case
was
removal
989
4,
removed,
to
serve
Plaintiff
has
Defendant.
F.
Supp.
at
1478-79.
2015
to
serve
120
Fed.
R.
Because
Defendant,
days
Civ.
from
P.
4(m);
Plaintiff has
Defendant's
the
motion
notice
e.g.
until
to
of
Ritts,
December
dismiss
is
DENIED.
The
serve.
Court
now turns
Plaintiff's
to
motion
Plaintiff's motion
requested
an
including January 12, 2016."
(Doc. 9).
the
is
current
service
deadline
to
extend time to
extension
"up
to
and
As the Court finds that
December
4,
2015,
Plaintiff's
requested extension is unnecessary and is DENIED.
ORDER ENTERED at Augusta,
October,
Georgia,
this
/ «Z^ "tiay of
2015.
HON
LE^
UNITED -STATES
SOUTHERN
KANDAL HALLV
DISTRICT
DISTRICT
JUDGE
OF GEORGIA
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