Robinson, III v. Wicher et al
Filing
67
ORDER denying 30 Motion for Reconsideration. Plaintiff shall have 60 days to perfect service on Defendant Moyse. Following effective service, Defendant shall have 30 days to consent to removal. Signed by Judge William T. Moore, Jr on 03/27/2019. (evk)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
EDDIE PRINCE ROBINSON, III,
Plaintiff,
CASE NO. CV416-179
V.
."T
JOHN WILCHER, Chatham County
'
1
cz
Cr,-y-
Sheriff, in his official
capacity; CORIZON HEALTH,
OJ
n:
-R\
4' ]
INC.; JOSEPH MOYSE, M.D.;
*
7
1
of /
/
CARL FAULKS, M.D.; and JOHN
-Tj '
■3D
\3
•.J
;
DOES 1-99;
'o
l
xr
• •
Defendants.
ORDER
Before
Ill's
the
Motion
Court
for
following reasons,
will
once more
serve
Defendant
is
Plaintiff
provide
Plaintiff
Moyse.
Plaintiff
§ 1448.
Following effective
to
Price
{Doc.
on
with
For
have
Defendant Moyse pursuant
Defendant
Moyse
time
days
60
to
to
to 28
U.S.C.
to
pursuant
SHALL
the
The Court
additional
SHALL
service
Robinson,
30.)
Plaintiff's motion is DENIED.
service
§ 1446 (b) (2) (A),
Eddie
Reconsideration.
perfect
consent
U.S.C.
have
28
30
days
to
removal.
BACKGROUND
This
deliberate
he
was
r-
~o
case
involves
indifference
incarcerated,
serious
to
allegations
Plaintiff's
culminating
in
of
medical
the
loss
Defendants'
needs
of
while
sight
in
C'-T
one eye. (Doc. 1, Attach. 1.) The
filed
in
the
Superior
Court
of
action
Chatham
was originally
County
and
was
removed to this Court on June 30, 2016. {Doc. 1.) The issue
of whether
Defendant Moyse
raised
Plaintiff's
in
Defendant
Moyse's
was
Motion
Special
properly served
to
Remand
Appearance
was first
(Doc.
Motion
11)
to
and
Dismiss
(Doc. 16). In his motion to remand, Plaintiff argued that
this
action
Defendant
consent
to
should
Moyse
be
was
removal,
remanded to
properly
thus
superior
served
rendering
and
court
did
removal
not
because
timely
non-unanimous
between all defendants. (Doc. 11 at 1-2.) Plaintiff argues
that Defendant Moyse was properly served on June 21, 2016
when
a
private
process
server
served
the
complaint
and
summons on a 'VANE DOE Wife" at Defendant Moyse's place of
residence at 416 Woodland Estates Drive, North Baldwin, NY
11510. (Doc. 11, Attach. 1 at 1.) Plaintiff relies on the
process server's affidavit of suitable service to show that
service was completed. (Doc. 11 at 6.)
Defendants Wilcher, Corizon Health, and Faulks filed a
joint
response
in
opposition
to
Plaintiff's
remand. (Doc. 17.) In their response.
motion
to
Defendants Wilcher,
Corizon Health, and Faulks argue that Defendant Moyse has
not
been
properly
served
because
the
service
that
was
allegedly conducted on June 21, 2016 occurred when neither
Defendant Moyse nor Defendant Moyse's wife was home. (Id.
at
2.)
Thus,
service
was
not
perfected
because
the
complaint and summons were not left with a resident of the
home. (Id.) Defendants Wilcher, Corizon Health, and Faulks
contend that, because Defendant Moyse has not been properly
served, his consent was not required to remove the action
and remand would be improper. (Id. at 3.) Additionally, the
properly
served
Plaintiff and
2016
in
Defendants
counsel for
which
counsel
provided
an
e-mail
between
Defendant Moyse
dated
July 26,
for
Moyse
informed
Defendant
Plaintiff's counsel that service
was improper and offered
to
by
waive
service
if
requested
Plaintiff.
(Doc.
17,
Attach. 1 at 2.)
In Defendant Moyse's Motion to Dismiss, he argues that
he was not properly served because he was not personally
served
DOE'
and
Wife"
service.
his
wife
was not served,
designation
(Doc.
16,
on
Attach.
the
1
despite the
affidavit
at
3.)
of
VANE
suitable
Defendant
Moyse
attached his own affidavit and the affidavit of his wife in
support of his motion to dismiss. Defendant Moyse's wife
claims that she did not speak with or see a process server
on June 20, 2016 or June 21, 2016 and no one handed her any
documents. (Id.
at 16.) Defendant Moyse
also argues that
the process server's description of the Jane Doe Wife does
not
match
his
wife's
appearance-his
wife
is
an
African
American female with brown hair and golden highlights and
is
5'4''.
(Id.
at
6.)
The
process
server
described
the
VANE DOE' Wife" as an African American female with black
hair who was 5'9'' to 6'0'' tall. (Id.)
On March 28, 2017, the Court entered an order denying
both
Plaintiff's Motion to Remand (Doc. 11) and
Defendant
Moyse's Motion to Dismiss (Doc. 16). (Doc. 29.) The Court
gave Plaintiff sixty days to perfect service on Defendant
Moyse
and
then,
following
effective
service.
Defendant
Moyse would have 30 days to consent to removal. (Id. at 7.)
Plaintiff filed a motion for reconsideration on April
24, 2017. (Doc. 30 at 1.) In his motion. Plaintiff argues
that the Court did not rule on whether service was proper
and that, if he complies with this Court's order to perfect
service on Defendant Moyse, then he risks waiving the issue
of improper removal on appeal. (Doc. 30 at 1-2.) Plaintiff
also argues that if Defendant Moyse participates in this
case, then ''the
judgment
Moyse
only
was
Court's
not
review
parties risk having an entire trial and
to
have
the
decision
validly
served."
of
docket.
the
reversed
(Id.
at
Plaintiff
perfected service on Defendant Moyse.
6.)
because
From
still
has
Dr.
this
not
ANALYSIS
^'In cases removed from state courts, the sufficiency
of service of process attempted before removal is governed
by state law." White v. Capio Partners, LLC, No. 1:15-CV120,
2015
(citing
WL
5944943,
at
*2
(S.D.
Ga.
Rentz v. Swift Transp. Co., 185
Oct.
F.R.D.
13,
2015)
693, 696
(M.D. Ga. 1998)). ''Once a case has been removed to federal
court,
federal
law
governs
future
attempts
to
serve
process." Id. (citing 28 U.S.C. § 1448 and Fed. R. Civ. P.
81(c)(1)). In this case, service was attempted on June 21,
2016 and the case was removed to federal court on June 30,
2016 (Doc. 1). Accordingly, because the case was in state
court when Plaintiff attempted service, the sufficiency of
that service is governed by Georgia law. In 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:
(7)
.
.
.
personally,
thereof
or
at
to
by
the
the
defendant
leaving
copies
defendant's
dwelling house or usual place of
abode with some person of suitable
age
and
discretion
then
residing
therein, or by delivering a copy
of the summons and complaint to an
agent authorized by appointment or
by law
to
receive
service
of
process.
O.C.G.A. § 9-11-4(e).
Plaintiff
argues
that
Defendant
Moyse
was
properly
served on June 21, 2016 through substituted service when a
private process server served the complaint and summons on
a 'VANE DOE Wife" at Defendant Moyse's place of residence
at
416
(Doc.
Woodland
11,
Estates
Attach.
exclusively
on
1
the
Drive,
at
1.)
affidavit
process server to show
that
served.
of
The
Alberto
affidavit
Perez
testifies
of
North
Baldwin,
Plaintiff
almost
service
Defendant Moyse
that
11510.
relies
suitable
suitable
NY
was
service
"service
by
properly
completed
was
the
made
by
by
delivering a true copy thereof to and leaving with 'JANE
DOE' Wife a person of suitable age and discretion." (Doc.
30,
Attach.
individual
1
as
at
3.)
follows:
The
process
"Approx
server
Age:
described
51-65
Yrs.,
the
Approx
Weight: 131-160 Lbs., Approx Height: 5' 9'' - 6' 0'', Sex:
Female, Approx Skin: Black, Approx Hair: Black." (Id.) The
process server also included a narrative that he spoke to
"JANE DOE" and, when he asked about whether the defendant
was in
active
military service,
he
received
a "negative
reply and that the defendant always wore civilian clothes
and no military uniform." (Id.)
Defendant
Gabrielle
Moyse
Louis,
admits that
reside
at
416
he
and
Woodland
his
wife,
Estates
Marie
Drive,
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