Riles v. Augusta-Richmond County Commission et al
ORDER granting in part and denying in part 20 Motion to Dismiss. Signed by Chief Judge J. Randal Hall on 08/23/2017. (thb)
CIVIL ACTION NO.
COMMISSION, ROBERT LEVINE,
JOANIE SMITH, and RONALD
Before the Court in the captioned matter is a motion to
filed by Defendant Robert
Houck, except that Defendant Levine has asserted an additional
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
Also like his co-defendants, Defendant
Title I of the Civil Rights Act of 1991 is codified at 42
unclear from the
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,
seeks dismissal of any claims against him in his individual
process against him was insufficient and untimely.
has been briefed and is ripe for consideration.
The Court incorporates herein the statement of facts and
law in its Order of August
extent Defendant Levine's motion to dismiss is duplicative of
his co-defendants' motions.
Upon those facts and conclusions,
Defendant Levine under 42 U.S.C.
§ 1981a and 42 U.S.C.
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
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
(PL's Resp. in Opp'n to Mots, to Dismiss, Doc.
dismiss based upon a lack of personal jurisdiction.
instant action on December 27,
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.
The Return of
through the front door of his residence and asked the process
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
discretion who resides there.
2 The process server states that Defendant Levine widentified
process server further attests that he drove by the house
shortly after leaving the process to find it had been removed.
Defendant Levine was identified and personally served at his
"a face-to-face encounter and in-
hand delivery are not always necessary for proper service of
World Entm't Inc. v. Brown,
487 F. App'x 758,
("Leaving papers in the defendant's physical
defendant actually received the papers at issue when allegedly
2011 WL 3299756,
process server verified defendant's identity at his residence
but defendant refused to open the door); Villanova v. Solow,
service sufficient where deputy constable spoke with defendant
through his front door,
defendant refused to open the door,
the Court finds that service in this case in
the manner described was
Defendant Levine also complains of the untimeliness of
service since he was not served within 90 days of filing the
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.
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
against Defendant Levine under 42 U.S.C. § 1981a and 42 U.S.C.
§ 1981 are dismissed;
dismissed; and Plaintiff's claims against Defendant Levine in
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
ORDER ENTERED at Augusta, Georgia, this ^p?^
J. RA^DSf] HALL/ CHIEF JUDGE
UNITED SJATES DISTRICT COURT
DISTRICT OF GEORGIA
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