Riles v. Augusta-Richmond County Commission et al

Filing 25

ORDER granting in part and denying in part 20 Motion to Dismiss. Signed by Chief Judge J. Randal Hall on 08/23/2017. (thb)

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IN THE UNITED STATES DISTRICT SOUTHERN DISTRICT OF COURT FOR THE GEORGIA AUGUSTA DIVISION JAMES D. RILES, * Plaintiff, * * CIVIL ACTION NO. * vs. CV 116-214 • AUGUSTA-RICHMOND COUNTY * COMMISSION, ROBERT LEVINE, JOANIE SMITH, and RONALD HOUCK, * * * Defendants. * ORDER Before the Court in the captioned matter is a motion to dismiss filed by Defendant Robert identical individual to the motions defendants, to Levine. dismiss Defendants The filed Joanie motion by Smith the and is other Ronald Houck, except that Defendant Levine has asserted an additional ground. More particularly, like his co-defendants, Defendant Levine moves to dismiss any claims under Title I of the Civil Rights Act of 1991, which is codified at 42 U.S.C. and 42 U.S.C. § 1981.x 1 § 1981a, Also like his co-defendants, Defendant Title I of the Civil Rights Act of 1991 is codified at 42 U.S.C. § 1981a. It is unclear from the complaint whether Plaintiff was referring to § 1981a when he listed "Title I of the Civil Rights Act of 1991 - 42 U.S.C. § 1981" or whether he was referring to both § 1981a and § 1981. See Olmstead v. Taco Bell Corp., 141 F.3d 1457, 1462 (11th Cir. 1998) (acknowledging the potential for confusion in differentiating between the amendments to Title VII embodied in § 1981a and Levine seeks dismissal of the official capacity claims against him as duplicative of the claims against the County, and he seeks dismissal of any claims against him in his individual capacity. Finally, Defendant Levine adds that service of process against him was insufficient and untimely. The motion has been briefed and is ripe for consideration. The Court incorporates herein the statement of facts and conclusions of law in its Order of August 21, 2017 to the extent Defendant Levine's motion to dismiss is duplicative of his co-defendants' motions. the Court rules as Upon those facts and conclusions, follows: (1) Defendant Levine under 42 U.S.C. Plaintiff's claims § 1981a and 42 U.S.C. against § 1981 are dismissed; (2) Plaintiff's claims against Defendant Levine in his individual capacity under Title VII are dismissed, but the individual capacity claims against him under 42 U.S.C. § 1983 will stand; and (3.) Plaintiff's claims against Defendant Levine in his official capacity under Title VII and § 1983 are dismissed. The the Court cause of now action turns to created Defendant in § Levine's 1981). motion Defendants to have interpreted the language to state claims under § 1981a and § 1981. For his part, Plaintiff all but concedes that he does not have an independent claim under either statute, stating that his complaint collective Amendment." 23, at 2.) is violations "based of primarily Title VII and upon the Defendants' Fourteenth (PL's Resp. in Opp'n to Mots, to Dismiss, Doc. dismiss based upon a lack of personal jurisdiction. Plaintiff filed the Defendant instant action on December 27, 2016. Levine explains that he now resides in New Haven, Connecticut, and that on May 12, 2017, copies of the Summons and Complaint were simply left on the front door step of this residence. At the time of filing the motion to dismiss, no return of service or affidavit of service had been entered in the record of the case with respect to Defendant Levine. However, hour dismiss and filed, Service seventeen Plaintiff indicates minutes filed a that after the Return of Defendant motion to Service. Levine an was The Return of identified himself through the front door of his residence and asked the process server to leave server left the the process process in his mailbox. on Defendant The Levine's process front door step.2 Federal Rule of Civil Procedure 4 provides that service of process may be made upon an individual within the United States by delivering a copy of the summons and complaint to the individual personally or by leaving a copy of each at the individual's dwelling with discretion who resides there. someone Fed. of R. suitable Civ. P. age 4(e). and Here, 2 The process server states that Defendant Levine widentified himself but refused to open the door." (Doc. 22.) The process server further attests that he drove by the house shortly after leaving the process to find it had been removed. (Idj Defendant Levine was identified and personally served at his residence.3 Importantly, "a face-to-face encounter and in- hand delivery are not always necessary for proper service of process." (3d Cir. World Entm't Inc. v. Brown, 2 012) proximity evades is 487 F. App'x 758, 761 ("Leaving papers in the defendant's physical usually sufficient service, and (2) there if is (1) defendant clear evidence actively that the defendant actually received the papers at issue when allegedly served."); (D. Kan. Hillcrest Bank, Aug. 1, 2011) N.A. v. Anzo, (finding 2011 WL 3299756, service sufficient *3 when process server verified defendant's identity at his residence but defendant refused to open the door); Villanova v. Solow, 1998 WL 643686, *2 (E.D. Penn. Sept. 18, 1998) (finding service sufficient where deputy constable spoke with defendant through his front door, and constable complaint announced through consideration, defendant refused to open the door, the he mail was putting slot in the the summons door). and Upon the Court finds that service in this case in the manner described was sufficient. Defendant Levine also complains of the untimeliness of service since he was not served within 90 days of filing the complaint. See Fed. R. Civ. P. 4 (m) . However, the court may 3 Defendant Levine has presented no argument or evidence to dispute the circumstances relayed in the Return of Service or to contest that the Connecticut home was his dwelling place. extend the time for service upon good cause shown. Id. Here, Plaintiff argues that he needed more time to locate Defendant Levine who had moved out of state. The Court finds that the relocation of Defendant Levine is sufficient cause to warrant the modest extension of time to serve process in this case. Accordingly, Defendant Levine's motion to dismiss based upon insufficient service of process is denied. Upon the foregoing, Defendant Levine's motion to dismiss is GRANTED IN PART and DENIED IN PART. Plaintiff's claims against Defendant Levine under 42 U.S.C. § 1981a and 42 U.S.C. § 1981 are dismissed; Levine in his Plaintiff's individual claims capacity against Defendant under Title VII are dismissed; and Plaintiff's claims against Defendant Levine in his official dismissed. capacity under Title VII and § 1983 are In all other relevant respects, Defendant Levine's motion to dismiss is denied. The Court hereby exercises its discretion not to award attorney's fees and costs associated with filing the motion to dismiss to Defendant Levine as requested. ORDER ENTERED at Augusta, Georgia, this ^p?^ August, ciay of 2 017. J. RA^DSf] HALL/ CHIEF JUDGE UNITED SJATES DISTRICT COURT DISTRICT OF GEORGIA

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