King v. Marcy et al

Filing 68

ORDER denying re 24 Motion to Dismiss; denying re 33 Motion to Dismiss; denying re 42 Motion to Dismiss; denying re 47 Motion to Strike; denying re 47 Motion for Default Judgment. The Court ORDERS Plaintiffs to file a comprehensive operativ e complaint entitled "Plaintiffs' Amended Complaint," as outlined in Section 1 of this Order, within seven days of this Order. Plaintiffs are to identify each Defendant by his or her first and last name, including Defendants who did not raise this issue in a motion. Signed by District Judge R. Stan Baker on 2/19/19. (loh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

ROXANNE KING; and STACY GRADY,
individually and as next friend of her three
minor children,
Plaintiffs,

CIVIL ACTION NO.: 2:17-cv-112

v.
PARKER MARCY, et al.,
Defendants.

ORDER
This matter is before the Court on Plaintiffs’ Motion to Strike and Entry of Default, (doc.
47), and Motions to Dismiss filed by the following Defendants: Richard Leska, Resden Talbert,
Ronald Cooper, and Christopher Lowther, (doc. 24); Eric Butler, (doc. 33); and Clayton Palmer,
(doc. 42). These Defendants move for dismissal based on Plaintiffs’ failure to abide by the
procedures set out in Federal Rule of Civil Procedure 4 for service of process. The Court finds
that Plaintiffs have not fully complied with Rule 4 but, for the reasons set forth below, the Court
nonetheless DENIES Defendants Leska, Talbert, Cooper, and Lowther’s Motion, (doc. 24),
DENIES Defendant Butler’s Motion, (doc. 33), and DENIES Defendant Palmer’s Motion, (doc.
42). The Court also DENIES Plaintiffs’ Motion to Strike and Entry of Default, (doc. 47). The
Court further ORDERS additional actions specific to Plaintiffs’ counsel as outlined in the
Conclusion section at the end of this Order.

BACKGROUND
On September 18, 2017, Plaintiff Roxanne King filed this cause of action pursuant to
42 U.S.C. § 1983 alleging injury from a December 15, 2015 arrest effectuated by Defendant
Marcy and fourteen other officers who were identified in the Complaint as John Does 1–10 and
Jane Does 1–4. (Doc. 1.) Defendant Marcy filed an Answer on November 7, 2017. (Doc. 5.)
Upon motion by Plaintiff King, the Court subsequently ordered that Stacy Grady be added as a
Plaintiff. (Docs. 6, 9.) The Court also granted Plaintiffs’ request to substitute the following
fourteen individuals in place of the John and Jane Doe Defendants: “David Hassler, Garret
Wright, D. J. Walker, David Haney, Corey Sasser, Officer ____ Cooper, Officer ____ Butler,
Officer ____ Stagner, Officer ____ Hollingsworth, Officer ____ Arnold, Officer ____ Leska,
Officer C. Palmer, Officer C. Lowther, and Investigator Resnick Talbert.” (Docs. 7, 9.) The
Clerk of Court issued summons for each substituted Defendant on the day they were added as
parties, February 1, 2018. (Doc. 11.) Pursuant to Federal Rule of Civil Procedure 4(m),
Plaintiffs had until May 2, 2018 to serve the substituted Defendants. 1
Defendants Hassler, Sasser, Wright, and Talbert acknowledged service on May 1, 2018.
(Docs. 13, 14, 15, 16.) On May 2, 2018—the original deadline for service—Defendants Lowther
and Cooper were served personally, (docs. 27, 28), Plaintiffs emailed a copy of the summons and
Complaint to Defendant Leska, (doc. 24-1), and Plaintiffs filed a motion requesting additional
time to serve all Defendants who had not yet been served, (doc. 18). Defendant Haney was
served personally the following day, May 3. (Doc. 29.) On May 9, 2018, the Court granted

1

Federal Rule of Civil Procedure Rule 4(m) provides that “[i]f a defendant is not served within 90 days
after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss
the action without prejudice against that defendant or order that service be made within a specified time.”
However, a new 90-day deadline begins where, as here, a plaintiff amends a complaint to substitute or
add a defendant. See Lee v. Airgas Mid-South, Inc., 793 F.3d 894, 898 (8th Cir. 2015) (citations omitted).

2

Plaintiffs’ request for an extension, and the deadline for service was extended thirty (30) days,
making the new deadline June 8, 2018.

(Doc. 19.)

The Court also ordered Plaintiffs to

specifically show cause in the event they failed to serve any of the remaining Defendants within
the extended period. (Id.) On June 6, 2018, service was attempted on Defendants Butler and
Walker. (Docs. 30, 31.) While Defendant Walker was served personally, (doc. 31), Defendant
Butler was not; a process server left a copy of the summons and Complaint with Lieutenant
Jeremiah Bergquist at Defendant Butler’s place of business, the Glynn County Police
Department, (doc. 30).
As of June 7, 2018, one day prior to the expiration of the extended service period,
Plaintiffs had not attempted service on four Defendants: Palmer, Hollingsworth, Stagner, and
Arnold.

On June 8, 2018, Plaintiffs filed a motion requesting additional time to serve

Defendants Hollingsworth, Stagner, and Arnold. (Doc. 32.) The Court granted this request on
July 9, 2018, and a new deadline as to these three Defendants was set for September 7, 2018.
(Doc. 37.) Plaintiffs did not request additional time to serve Defendant Palmer, but he was
nonetheless served personally on August 13, 2018. (Doc. 32.) Defendants Hollingsworth,
Stagner, and Arnold acknowledged service on August 14, 2018. (Doc. 38.)
Defendants Lowther, Cooper, Leska, and Talbert filed a joint Motion to Dismiss on May
22, 2018, averring that Plaintiffs failed to comply with the requirements of Federal Rule of Civil
Procedure 4. (Doc. 24.) These Defendants argue that dismissal of the claims against them is
proper because Plaintiffs did not adequately “name all parties” as required by Rule 4(a)(1)(A).
(Id. at pp. 3–7.) Specifically, they contend that Plaintiffs’ failure to identify the first names of
Defendants Leska, Cooper, and Lowther, and Plaintiffs’ misspelling of Defendant Talbert’s first
name entitle them to dismissal. (Id.) As an additional ground for relief, Defendant Leska argues

3

the claims against him must be dismissed because Plaintiffs did not serve him in a manner
permitted under Rule 4. (Id. at p. 5.)
Defendant Butler filed a separate Motion to Dismiss on June 14, 2018, also alleging Rule
4 service deficiencies. (Doc. 33.) First, Defendant Butler argues the claims against him should
be dismissed because he was never served. (Id. at p. 3.) As noted above, Plaintiffs’ process
server did not serve Defendant Butler personally; Lieutenant Bergquist was served at Defendant
Butler’s place of business, the Glynn County Police Department. (Id. at pp. 3–7.) Although the
Proof of Service indicates that Lieutenant Bergquist was “designated by law to accept service of
process on behalf of [the] Glynn County Police Department,” (doc. 30), Defendant Butler argues
that this designation does not prove the lieutenant was authorized to accept service on his behalf.
(Doc. 33, p. 4.) Additionally, Defendant Butler argues Plaintiffs’ failure to include his first name
constitutes a failure to sufficiently identify him under Rule 4(a)(1)(A). (Id. at p. 5.) Because
Plaintiffs did not serve him in a manner permitted by Rule 4 and did not identify his full name in
the pleadings, Defendant Butler urges the Court to dismiss the claims against him. (Id. at p. 2.)
The third Motion to Dismiss for insufficient service was filed by Defendant Palmer on
September 10, 2018. (Doc. 42.) Defendant Palmer contends that Plaintiffs failed to serve him in
a timely manner as required by Rule 4(m) and the Court should accordingly dismiss the claims
against him on this basis. (Id.) Plaintiffs did not serve Defendant Palmer until August 13,
2018—194 days after he was added to this action and 67 days after the extended deadline for
service (June 8, 2018). (Id. at p. 3.) Despite having done so for other Defendants who were not
served by June 8, 2018, Plaintiffs did not request an additional extension of time to serve
Defendant Palmer nor did they show good cause for their failure to timely serve him. (Id.)

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Defendant Palmer argues that these circumstances merit the dismissal of Plaintiffs’ claims
against him. (Id.)
The other named defendants—Defendants Marcy, Hassler, Sasser, Wright, Haney,
Walker, Arnold, Hollingsworth and Stagner—do not contest the sufficiency of service or service
of process upon them.
Finally, Plaintiffs filed a Motion to Strike and Motion for Default Judgment on October
5, 2018.

(Doc. 47.)

Plaintiffs maintain that Defendant Palmer’s Motion to Dismiss was

untimely under Federal Rule of Civil Procedure 12 and urge that his Answer should be stricken,
and a default judgment should be entered against him. (Id.)
DISCUSSION
The moving Defendants aver that dismissal is warranted under Federal Rule of Civil
Procedure 12 for failure to perfect service in accordance with Rule 4, which “requires a plaintiff
to serve each defendant with a copy of both the summons and the complaint” and specifies the
proper manners and methods for doing so. Cooley v. Ocwen Loan Servicing, LLC, 729 Fed.
App’x 677, 682 (11th Cir. 2018) (per curiam). Because service of process is a jurisdictional
requirement, the Court lacks personal jurisdiction over a defendant who has not been properly
served. See Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990). Where a
plaintiff attempts to serve a defendant and the validity of such service is contested, “the standards
of proof governing motions to dismiss for lack of personal jurisdiction are applicable.”
Kammona v. Onteco Corp., 587 F. App’x 575, 578 (11th Cir. 2014) (per curiam) (citations
omitted). “As with a challenge to jurisdiction . . . the party on whose behalf service is made has

5

the burden of establishing its validity.” Familia De Boom v. Arosa Mercantil, S.A., 629 F.2d
1134, 1138 (5th Cir. 1980) (citations omitted). 2
Defendants collectively put forth four theories to support their contention that the Court
lacks personal jurisdiction over them due to inadequate service of process. (Docs. 24, 33.) First,
Defendants Lowther, Cooper, Leska, Talbert, and Butler allege that Plaintiffs failed to
adequately name or identify them as parties as required by Rule 4(a)(1)(A). (Doc. 24, pp. 3–4;
Doc. 33, p. 5.) Second, Defendant Leska points to Plaintiffs’ attempt to serve him via email and
argues this is not a method of service permitted under Rule 4(e)(2) or Georgia law. (Doc. 24, p.
5.) Next, Defendant Butler claims he was never served because the summons and Complaint
were neither served on him personally nor were they served on an agent authorized to receive
service of process on his behalf. (Doc. 33, p. 5.) Finally, Defendant Palmer points to Plaintiffs’
failure to serve him within the initial 90-day period provided by Rule 4(m) or the initial
extension thereof, as well as Plaintiffs’ failure to show cause and “obtain a further extension of
time.” (Doc. 42, p. 3.) Each theory will be addressed in turn.
In their Motion to Strike and Motion for Default Judgment, Plaintiffs argue that
Defendant Palmer’s Motion to Dismiss was improper under Federal Rule of Civil Procedure 12.
(Doc. 47.) Defendant Palmer filed his Motion to Dismiss, (doc. 42), and Answer, (doc. 43), on
September 10, which was 28 days after Plaintiffs’ untimely service upon him. Plaintiffs aver
that Defendant Palmer’s Motion and Answer were not timely because, under Federal Rule of
Civil Procedure 12, he was required to answer or file a motion to dismiss (pursuant to subsection
(b) of Rule 12) within 21 days of service. (Doc. 47.) As such, Plaintiffs urge that his Answer

2

Decisions of the former Fifth Circuit issued prior the close of business on September 30, 1981,
constitute binding precedent in this Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.
1981) (en banc).

6

should be stricken, and a default judgment should be entered against him. (Id.) This Motion is
addressed in Section V, below.
I.

Whether Defendants Lowther, Cooper, Leska, Talbert, and Butler Were Properly
Named Under Rule 4(a)(1)(A)
Defendants Lowther, Cooper, Leska, Talbert, and Butler argue that omissions and

spelling errors contained in their summonses and the Amended Complaint failed to adequately
identify them as parties, violating Rule 4(a)(1)(A).

(Doc. 24, pp. 3–4; Doc. 33, p. 5.)

Specifically, the summonses (and the Amended Complaint): did not contain the first names of
Defendants Leska, Cooper, and Butler; only provided the initial “C.” in lieu of Defendant
Lowther’s first name; and misspelled Defendant Talbert’s first name. (Id.; doc. 8.)
While Rule 4(a)(1)(A) provides that a summons must include the names of the parties, a
court will not deem service of process legally defective simply because the complaint or the
summons misname a defendant in some insignificant way. See Mcgee v. Cook, No. 8:09-CV2543-T-27TGW, 2011 WL 1365024, at *1 (M.D. Fla. Apr. 11, 2011) (citing Morrel v.
Nationwide Mut. Fire Ins. Co., 188 F.3d 218, 244 (4th Cir. 1999)). Rule 4 “is a flexible rule that
should be liberally construed so long as a party receives sufficient notice of the complaint.”
Sanderford v. Prudential Ins. Co. of America, 902 F.2d 897, 900 (11th Cir. 1990) (quoting
United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir.
1984) and citing 4A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure §
1083 at 10 (1987)). Consequently, a mere technical defect on the face of the summons will not
justify dismissal unless a defendant shows that he was prejudiced by the error; a defendant
“should not be permitted to take advantage of a mere misnomer that injured no one.” Grandey v.
Pacific Indem. Co., 217 F.2d 27, 29 (5th Cir. 1954); see also Sanderford, 902 F.2d at 900–01
(noting that “[e]ven if the summons fails” to adequately name defendants, “dismissal is generally

7

not justified absent a showing of prejudice”) (citations omitted). Additionally, there is a “wellrecognized distinction between [suing] the wrong party, and [suing] the right party by the wrong
name.” Roberts v. Michaels, 219 F.3d 775, 777–78 (8th Cir. 2000).
Here, Defendants Lowther, Cooper, Leska, Talbert, and Butler essentially claim the latter
and do not allege that Plaintiffs intended to sue any persons other than the named parties to this
action. The record before the Court shows that service was not rendered invalid by the omission
or misspelling of these Defendants’ names.

No confusion exists as to Plaintiffs’ intended

adversaries and Defendants Lowther, Cooper, Leska, Talbert and Butler have not shown (and do
not allege) prejudice caused by these technical shortcomings and errors. As explained by the
Fourth Circuit Court of Appeals,
A suit at law is not a children’s game, but a serious effort on the part of adult
human beings to administer justice; and the purpose of process is to bring parties
into court. If it names them in such terms that every intelligent person understands
who is meant . . . it has fulfilled its purpose; and courts should not put themselves
in the position of failing to recognize what is apparent to everyone else.
United States v. A.H. Fischer Lumber Co., 162 F.2d 872, 873 (4th Cir. 1947). Accordingly, the
Court finds that, because the summonses satisfied Rule 4(a)(1)(A), dismissal is not warranted
under this theory.
However, the Court observes that, despite knowing the names of all of the Defendants,
Plaintiffs have failed to supplement or amend their pleadings to reflect the full and/or accurate
names of the parties to this action. The Court therefore ORDERS Plaintiffs to file, within seven
(7) days of this Order, a comprehensive operative complaint entitled “Plaintiffs’ Amended
Complaint.” Plaintiffs’ Amended Complaint should be comprised of, and should therefore set
forth, verbatim, paragraphs 1 through 10 of the original Complaint, (doc. 1), and paragraph 11
from Plaintiffs’ Supplemental Complaint, (doc. 8), except that Plaintiffs shall identify each

8

Defendant in paragraph 11 by their full names. In drafting this Amended Complaint, Plaintiffs
SHALL NOT make any additions, modifications or other amendments other than those
explicitly ordered herein. This is not an opportunity for Plaintiffs to assert new claims or name
new defendants. Rather, it is an opportunity to clearly state, in one pleading, the claims that they
have already asserted against the defendants they have already named. Defendants who have
already filed an Answer in this case may, but are not required to, file answers within twenty-one
(21) days of Plaintiffs’ date of filing. See SPE GO Holdings, Inc. v. Anzo, No. 2:10-CV-00215WCO, 2012 WL 13018489, at *1 (N.D. Ga. July 27, 2012) (defendant not required to file a new
answer where amended complaint did not contain any substantive changes).

As to those

Defendants who have not yet filed an Answer, they shall file an Answer or other responsive
pleading within twenty-one (21) days of service of Plaintiffs’ Amended Complaint.
II.

Whether the Service of Defendants Leska and Butler was Proper Under Rule 4(e)
If a defendant resides in the United States, service of process is governed by Federal Rule

of Civil Procedure 4(e). Rule 4(e)(1) permits a plaintiff to carry out service in a way that
complies with the law of either the state in which the federal district court sits, or the state in
which the plaintiff attempted to serve the defendant. Here, under either option, that state is
Georgia. Georgia’s statute governing service of process for individuals mirrors the methods laid
out in Rule 4(e)(2), which provides that a plaintiff can serve the defendant by: delivering a copy
of the summons and complaint to the defendant personally; leaving the copies at the defendant’s
dwelling or usual place of abode with someone of suitable age and discretion who lives there; or
delivering copies to an agent authorized by appointment or by law to receive service of process.
See Fed. R. Civ. P. 4(e)(2); O.C.G.A. § 9-11-4(e)(7).

9

In this case, Plaintiffs’ counsel attempted to serve Defendant Leska via electronic mail—
a method clearly not authorized by the Federal Rules or Georgia law. (Doc. 24-1.) See Johnson
v. Wellborn, 418 F. App’x 809 (11th Cir. 2011) (per curiam) (Rule 4 does not permit service by
email); Gormong v. Cleveland Elec. Co. of Georgia, Inc., 349 S.E.2d 500, 501 (Ga. Ct. App.
1986) (O.C.G.A. § 9-11-4(e) does not permit service by mail); see also Cooley,729 F. App’x at
682 (“Georgia law, like the federal rules, requires in-person service and makes no provision for
service by mail.” (citing O.C.G.A. § 9-11-4(e)(7)). Because the record does not contain evidence
demonstrating that Plaintiffs attempted to serve Defendant Leska in any other manner, the Court
finds that Defendant Leska was not properly served.
Plaintiffs’ attempt to serve Defendant Butler through Lieutenant Bergquist was similarly
improper.

When serving a defendant through an agent, the agent must be “authorized by

appointment or by law to receive service of process.” Fed. R. Civ. P. 4(e)(2)(C); O.C.G.A. § 911-4(e)(7).

Defendant Butler maintains that Lieutenant Bergquist did not have such

authorization. (Doc. 33, p. 4.) The Court agrees; neither the Federal rules nor Georgia law
contemplate “leaving a copy [of the summons and complaint] at [an] individual’s usual place of
business or with the individual’s employer.” Melton v. Wiley, 262 F. App’x 921, 923 (11th Cir.
2008) (per curiam); see also Commercial Union Ins. Co. v. Gibson, 437 S.E.2d 808, 808 (Ga. Ct.
App. 1993) (the term “agent” applies only “to agents that have some sort of controlling authority
and are vested with authority to create obligations on behalf of their principal”). Plaintiffs argue
that service is presumptively proper because Defendant Butler “has not come forward with any
evidence that Lieutenant Bergquist was not his agent for service of process,” (doc. 35, p. 1
(emphasis added)), but this assertion misstates where the burden lies. As noted above, it is
Plaintiffs who must prove the validity of service where, as here, a challenge has been made by

10

Defendant. See Familia De Boom, 629 F.2d at 1138. According to Defendant Butler, Lieutenant
Bergquist was not authorized to accept service on his behalf, and Plaintiffs have not provided
evidence to the contrary. (Doc. 33, p. 4.) Accordingly, the Court finds that Defendant Butler
was not properly served.
III.

Whether Plaintiffs Timely Served Defendant Palmer
Defendant Palmer urges the Court to dismiss the claims against him because Plaintiff

failed to serve him within the initial 90-day period provided by Federal Rule of Civil Procedure
4(m) or during the extended period granted by the Court. (Doc. 42). Rule 4(m) provides that
“[i]f a defendant is not served within 90 days after the complaint is filed, the court—on motion
or on its own after notice to the plaintiff—must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.”
Here, the original 90-day deadline for service expired on May 2, 2018 but was extended
to June 8, 2018. (Doc. 19.) Defendant Palmer was served on August 13, 2018, or 194 days after
he was added to this action and 67 days after the extended deadline for service expired. (Doc.
42, p. 3.) Despite having done so for other Defendants, Plaintiffs did not request an extension of
time to serve Defendant Palmer, much less endeavor to show cause for failing to do so by June 8,
2018. (See Doc. 32.) It is clear, therefore, that Defendant Palmer was not served in accordance
with Rule 4(m).
IV.

Whether to Dismiss the Claims Against Defendants Leska, Butler, and Palmer
Having found that Plaintiffs failed to properly serve Defendants Leska, Butler, and

Palmer, the Court now must determine whether dismissal of these Defendants is appropriate. As
noted above, Rule 4(m) provides that “[i]f a defendant is not served within 90 days after the
complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss

11

the action without prejudice against that defendant or order that service be made within a
specified time.” A plaintiff may request an extension of time for service of process upon the
showing of good cause, but even in the absence of such a showing, the Court “must still consider
whether any other circumstances warrant an extension of time.” Lepone-Dempsey v. Carroll
County Com’rs, 476 F.3d 1277, 1282 (11th Cir. 2007) (citing Fed. R. Civ. P. 4(m)). “Relief may
be justified, for example, if the applicable statute of limitations would bar the refiled action or if
the defendant is evading service or conceals a defect in attempted service.” Fed. R. Civ. P. 4(m)
advisory committee’s note to 1993 amendment.
As discussed previously, the original deadline for service on Defendants Leska, Butler
and Palmer was May 2, 2018. On that same date, Plaintiffs emailed a copy of the summons and
Complaint to Defendant Leska and asked the Court for an extension of time to serve all
Defendants who had not yet been served. The Court granted the extension one week later, giving
Plaintiffs until June 8, 2018 to properly serve any and all remaining Defendants, but “caution[ed]
Plaintiffs that they must serve Defendants within this extension period or the Court may dismiss
this case.” (Doc. 19, p. 2.) On May 22, Defendant Leska filed his Motion to Dismiss, raising the
issue of insufficient service. (Doc. 24.) Plaintiffs responded to that motion on June 5—three
days prior to the expiration of the extended service period—yet apparently made no efforts to
personally serve Defendant Leska. On June 6, 2018, Plaintiffs attempted to serve Defendant
Butler by leaving a copy of the Complaint and summons issued to him with someone at the
Glynn County Police Department. (Doc. 30). On June 8, despite not having served Defendant
Palmer, Plaintiffs requested an extension of service for three other specific Defendants, but not
Defendant Palmer. (Doc. 32.) Defendant Butler filed his Motion on June 14, (doc. 33), and
Plaintiffs subsequently filed a response, (doc. 35). After being served on August 13, (doc. 41),

12

Defendant Palmer filed his Motion to Dismiss on September 10, (doc. 42), to which Plaintiffs
responded, (doc. 44).
Although they filed Responses to each Motion addressing these service issues and
requested additional time to serve some Defendants, Plaintiffs have made no attempts to show
good cause or request any additional time to perfect service on Defendants Leska, Butler, or
Palmer. However, as made clear from the legal authority discussed above, the Court must
nonetheless consider whether “any other circumstances” warrant the provision of additional time
for Plaintiffs to properly serve Defendants Leska and Butler and the provision of a retroactive
67-day extension of time for service on Defendant Palmer. See Lepone-Dempsey, 476 F.3d at
1282
In light of the sequence of events highlighted above, the Court is reluctant, for several
reasons, to provide the described extensions. First and foremost, the Court has already given
Plaintiffs two extensions of time for service in this case. (Docs. 19, 37.) Next, little more than a
quick perusal of Rule 4 and OC.G.A. § 9-11-4 is needed for an attorney to confirm that an
individual cannot be effectively served via email alone. Yet, even after receiving and responding
to Defendant Leska’s motion detailing this error within the extended service period, Plaintiffs
made no attempt to properly serve Defendant Leska; instead, Plaintiffs simply filed a response
arguing that Defendant Leska had not shown any prejudice resulting from the email “service.”
(Doc. 26.) Moreover, one day after filing their response to Defendant Leska’s motion—a motion
discussing Rule 4’s requirements and Plaintiffs’ shortcomings pursuant to the Rule—Plaintiffs
neglected to properly serve Defendant Butler in accordance with Rule 4. When the second
service deadline approached two days later, Plaintiffs requested additional time to serve some of
the remaining Defendants, demonstrating that Plaintiffs’ counsel was acutely aware of the

13

deadlines in this case. This knowledge was apparently not enough to motivate total compliance
with the rules, as no extension was requested with regard to Defendant Palmer, who was then
served 67 days after the extended service period expired. Fortunately for Plaintiffs, however,
their repeated failures to comply with their service obligations do not necessarily mandate
dismissal and the Court must evaluate whether other circumstances warrant discretionary relief.
See Melton, 262 F. App’x at 924.
Taking into consideration the factors that may justify granting an extension even in the
absence of a showing good cause, the Court finds that a brief extension of time for service is
proper. If the claims against Defendants Leska, Butler, and Palmer were dismissed, there is a
risk that “the applicable statute of limitations would bar” Plaintiffs from refiling suit against
them. 3 Lepone-Dempsey, 476 F.3d at 1282. Moreover, even if Plaintiffs could refile suit against
these Defendants, the case would then proceed in an undesirable piecemeal fashion. Though
Plaintiffs’ service attempts were legally deficient, they were attempts nonetheless, and
Defendants clearly have actual knowledge of the lawsuit (and obtained such knowledge within
the first extended period for service). Further, Defendants’ active participation indicates that no
substantial prejudice will accrue upon them should Plaintiffs be afforded an extension of the
Rule 4(m) deadline. 4

Taken in the aggregate, these circumstances justify a discretionary

extension for service of process in this case.

3

The statute of limitations for Plaintiffs’ claims likely expired in December 2017. O.C.G.A. § 9-3-33;
see Reynolds v. Murray, 170 F. App’x, 49, 50 (11th Cir. 2006) (per curiam) (citing Owens v. Ocure, 488
U.S. 235, 236 (1989)) (explaining that 42 U.S.C. § 1983 “has no statute of limitations of its own and
instead is governed in each case by the forum state’s general personal injury statute of limitations”).
However, the Court expresses no ultimate opinion on the issue of timeliness at this time.
4

Indeed, Plaintiffs have recently conceded that Defendant Butler is entitled to summary judgment in this
case. (Doc. 62, p. 18.)

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The Court, however, finds it necessary—once again—to address Plaintiffs’ counsel’s
frequent and apparent disregard of Federal Rule of Civil Procedure 4. Despite the Court’s
repeated reference throughout this Order to the service shortcomings as being those of the
“Plaintiffs,” the Court is well-aware that service of process is typically handled by a party’s
attorney. Indeed, service is exactly the type of procedural requirement that frequently underlies a
litigant’s decision to hire legal counsel rather than proceed pro se. Far too often in his cases
before this Court, Plaintiffs’ counsel has failed to adequately issue service. See, e.g., Orders,
Alday v. Groover, 2:12-cv-108, ECF Nos. 19, 21 (S.D. Ga.); Order, Cupp v. United States, 5:12cv-5, ECF No. 5 (S.D. Ga.); Order, Smith v. Roundtree, 2:15-cv-004, ECF No. 27 (S.D. Ga.). In
this case alone, the Court has already given Plaintiffs’ counsel leeway regarding his duties under
Rule 4 on two separate occasions. (Docs. 19, 37.) The Court is particularly troubled by
Plaintiffs’ counsel’s apparent lack of concern even after an obvious inadequacy (i.e., “service”
by email) is called to his attention, as well as his indifference regarding the good cause showings
required by Rule 4. This demonstrates a flagrant disregard for the clear and well-established
mandates for personal service set forth in Federal Rule of Civil Procedure 4.
By failing to serve defendants in a timely or proper manner and refusing to even attempt
to make a good cause showing in satisfaction of Rule 4(m), Plaintiffs’ counsel has not only
frustrated this Court’s interest in the efficient and cost-effective administration of cases but also
unfairly prejudiced both Defendants and his clients. In future cases, Plaintiffs’ counsel should
make every effort to comply with Federal Rule of Civil Procedure 4’s deadline for service and
should be prepared to make a specific showing of good cause if he is unable to do so, or he will
be sanctioned.

See, e.g., Donaldson v. Clark, 819 F.2d 1551, 1555–61 (11th Cir.1987)

(approving imposition of a monetary sanction under Fed. R. Civ. P. 11 as an appropriate sanction

15

in the sound discretion of the court, inter alia, to deter costly maneuvers and avoid unnecessary
delay and expense in litigation).
V.

Whether to Grant Plaintiffs’ Motion to Strike and Motion for Default Judgment as
to Defendant Palmer
Defendant Palmer filed his Motion to Dismiss, (doc. 42), and Answer, (doc. 43), on

September 10, which was 28 days after Plaintiffs’ untimely service upon him. Plaintiffs then
filed a Motion to Strike and Motion for Default Judgment, arguing that Defendant Palmer’s
Motion and Answer were not timely because, under Federal Rule of Civil Procedure 12, he was
required to answer or file a motion to dismiss (pursuant to subsection (b) of Rule 12) within 21
days of service. (Doc. 47.) Plaintiffs therefore urge that Palmer’s Motion to Dismiss and his
Answer should be stricken, and a default judgment should be entered against him. (Id.)
Plaintiff’s argument carries patent irony. Plaintiffs’ counsel has brazenly disregarded the
Federal Rules of Civil Procedure and this Court’s Orders throughout this case.

However,

apparently unaware of the plank in their own eye, Plaintiffs attempt to spot a speck in the eye of
their opponent. Plaintiffs served Defendant Palmer 67 days after the Court’s deadline (pursuant
to a generous extension of time) had expired and Plaintiffs have never requested a retroactive
extension of time to make that service timely, much less made any effort to show the requisite
good cause for the tardy service. As a result, the Court is authorized to dismiss Plaintiffs’ claims
against Defendant Palmer pursuant to Rule 4(m), which would negate Plaintiff’s Motion to
Strike and Motion for Default Judgment. Plaintiffs have instead focused their efforts on seeking
to persuade the Court that they deserve a default judgment against Defendant Palmer because he
did not file responsive pleadings or motions in conformance with Rule 12’s deadline. As an
initial matter, Plaintiffs’ untimely service upon Defendant Palmer likely did not actually trigger

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Rule 12’s twenty-one-day deadline for filing an answer or motion to dismiss. 5 Moreover, even if
the deadline was triggered, Plaintiffs’ efforts to obtain a default judgment are in vain.
First, even if Palmer’s Motion to Dismiss was technically filed late, Plaintiffs are not
entitled to a default judgment. Perhaps unsurprisingly, Plaintiffs have not followed the two-step
process for securing a default judgment against a party who has failed to plead or otherwise
defend. See Fed. R. Civ. Pro. 55; see also Am. Deli Intern., Inc. v. Jay & Young Group, LLC,
No. 1:13-CV-02302-SCJ, 2014 WL 12098959, at *5 (N.D. Ga. Apr. 24, 2014) (“First, a party
seeking default must seek a clerk’s entry of default pursuant to Rule 55(a) by providing evidence
by affidavit or otherwise that the opposing party has failed to plead or otherwise defend. Second,
after the clerk has made an entry of default, the party seeking default judgment must file a
motion for default judgment under Rule 55(b)(1) or Rule 55(b)(2).” (internal quotations
omitted)); 10A Charles Alan Wright et al., Federal Practice and Procedure § 2682 (3d ed. 2002)
(“Prior to obtaining a default judgment under either Rule 55(b)(1) or Rule 55(b)(2), there must
be an entry of default as provided by Rule 55(a).”). Here, Plaintiffs did not request a clerk’s
entry of default pursuant to Rule 55(a), and no such default has been entered on the docket.
Because Plaintiffs failed to obtain a clerk’s entry of default prior to filing a Motion for Default
Judgment and Defendant Palmer’s Motion to Dismiss and Answer were filed prior to any entry
of default that could have been made pursuant to Rule 55(a), Plaintiffs’ Motion for Default

5

See, e.g., Smith v. Conner, No. 8:12-CV-52-T-30AEP, 2013 WL 268685, at *2 (M.D. Fla. Jan. 24,
2013) (“[T]his Court is aware of [no binding authority], from the United States Supreme Court or the
Eleventh Circuit, holding that a motion filed pursuant to [] Rule 12(b)(5) is untimely if made more than
21 days after the party is served with the summons and complaint.”); Delahoussaye v. Dantis, No. 952010, 1995 U.S. App. LEXIS 9951, at *1 (10th Cir. May 2, 1995) (“Until a defendant is properly served,
the defendant has no duty to answer or make other motions.”) (citations omitted); Millennium, L.P. v.
AutoData Sys., 2006 U.S. Dist. LEXIS 16329, *10 (D.N.J. Jan. 23, 2006) (unpublished) (“While an
answer must be filed within 20 days of the filing of a complaint, a pre-answer motion to dismiss under
Fed.R.Civ.P. 12(b)(2) and 12(b)(5) for lack of personal jurisdiction and improper service can be made
more than 20 days after the complaint is filed.”).

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Judgment must be denied. See Solaroll Shade and Shutter Corp. v. Bio-Energy Sys., Inc., 803
F.2d 1130, 1133–34 (11th Cir. 1986) (“If the defendant has answered the complaint... [the] issue
has been joined, and the court cannot enter a default judgment.”); Am. Deli Intern., No. 1:13CV-02302-SCJ, 2014 WL 12098959, at *5–6 (“Because Plaintiffs failed to obtain a clerk’s entry
of default prior to filing a Motion for Default Judgment and furthermore because Defendants’
April 3, 2014 Answer has now been filed prior to any entry of default that could have been made
pursuant to Rule 55(a), Plaintiffs’ Motion for Default Judgment must be denied.”); Skeete v.
Entm’t Studios Home Entm’t, Inc., No. l:10-cv-2709-JEC, 2011 WL 4014459, at *8 (N.D. Ga.
Sept. 8, 2011) (observing that a clerk’s entry of default judgment under Rule 55(b)(1) “would be
void” in light of defendants’ responsive pleadings).
Additionally, Plaintiffs are not entitled to default judgment and Defendant Palmer’s
Motion to Dismiss should not be stricken because the circumstances here satisfy Federal Rule of
Civil Procedure 55(c)’s “good cause” standard for setting aside default, the applicable standard
where a party seeks a default judgment despite there having been no formal entry of default.
Perez v. Wells Fargo, N.A., 774 F.3d 1329, 1137–38 (11th Cir. 2014). There is no indication
from the record that Defendant Palmer’s filing of the Motion to Dismiss eight days after Rule
12’s twenty-one-day deadline (again, assuming that deadline was triggered) resulted from willful
conduct, that it was tactically-motivated, or that it evinces a pattern of delay. Additionally, to the
extent it was a delay at all, it was insignificant—particularly when compared to Plaintiffs’ 67day delay in serving Defendant Palmer—and has caused no apparent prejudice to Plaintiffs.
Thus, even assuming Defendant Palmer’s Motion to Dismiss was late, he has shown good cause
for such delay. Moreover, the Court is mindful of the Eleventh Circuit Court of Appeals’ “strong
policy of determining cases on their merits” when reasonably possible. Fla. Physician’s Ins. Co.,

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Inc. v. Ehlers, 8 F.3d 780, 783 (11th Cir. 1993) (per curiam). Indeed, Plaintiffs have benefited
from this policy as the Court has repeatedly excused their counsel’s procedural errors in order to
reach the merits of Plaintiffs’ claims. As a result, to the extent Defendant Palmer’s Motion to
Dismiss could be deemed untimely filed, the Court hereby retroactively extends the time for its
filing.
Accordingly, the Court DENIES Plaintiffs’ Motion to Strike and Motion for Default
Judgment, (doc. 47).
CONCLUSION
For the reasons set forth above, the Court DENIES Defendants Leska, Talbert, Cooper,
and Lowther’s Motion to Dismiss, (doc. 24), DENIES Defendant Butler’s Motion to Dismiss,
(doc. 33), and DENIES Defendant Palmer’s Motion to Dismiss, (doc. 42). The Court also
DENIES Plaintiffs’ Motion to Strike and Entry of Default, (doc. 47).
However, the Court ORDERS Plaintiffs to file a comprehensive operative complaint
entitled “Plaintiffs’ Amended Complaint,” as outlined in Section I of this Order, within seven
(7) days of this Order. Plaintiffs are to identify each Defendant by his or her first and last name,
including Defendants who did not raise this issue in a motion.
The Court further ORDERS Plaintiffs to properly serve Defendant Leska, Defendant
Butler, and Defendant Palmer with the Amended Complaint in accordance with Federal Rule of
Civil Procedure 4 within seven (7) days of Plaintiffs’ filing of their Amended Complaint. The
Court further ORDERS Plaintiffs to file on the docket of this case proof of service as to
Defendants Leska, Butler, and Palmer within seven (7) days of having served these Defendants.
Should Plaintiffs fail to properly serve Defendant Leska, Defendant Butler, or Defendant Palmer
and provide proof of service of them as set forth in this Order, the Court will dismiss Plaintiffs’
claims against that Defendant.
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Finally, as laid out above, the Court finds that the significant errors in this case are due to
the actions of Plaintiffs’ counsel, not Plaintiffs. Counsel has made errors that can only be
attributed to a blatant disregard of the Federal Rules of Civil Procedure and this Court’s Orders.
While the Court has decided not to sanction Plaintiffs’ counsel at this time, counsel’s actions
should not go unaddressed. Further, the Court is concerned that Plaintiffs are unaware of their
attorney’s inaction and the resulting delays in the administration of their claims. Consequently,
no later than seven (7) days from the date of this Order, Plaintiffs’ counsel SHALL CERTIFY
to the Court that he has provided his clients with a copy of this Order and that his clients have
acknowledged receipt thereof.
SO ORDERED, this 19th day of February, 2019.

R. STAN BAKER
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA

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