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)

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