Stuart v. United States Of America et al

Filing 21

ORDER granting 14 Motion to Dismiss. Plaintiff's claims are dismissed without prejudice. This case stands closed. Signed by Chief Judge J. Randal Hall on 6/7/2018. (pts)

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

CURTIS STUART,

*
*

Plaintiff,

*
*

V.

*

CV 417-231

*

UNITED STATES OF AMERICA;

*

LYNSEY M. BARRON; KAMAL GHALI;

*

BYUNG J. PAK; and JAMES HATTEN,

*
*

Defendants.

*

ORDER

Before

14.)

the

Court is Defendants'

Plaintiff,

opposition.

proceeding

(Doc. 16.)

pro

Motion

se,

to Dismiss.

filed

a

(Doc.

response

in

Accordingly, Defendants' motion has

been fully briefed and is ripe for review.

For the following

reasons. Defendants' motion is GRANTED.

I.

Plaintiff

brought

by

Georgia.

is the

the
(See

BACKGROUND

defendant in

United

States

in

a

pending criminal matter

the

Northern

District

of

United States v. Stuart, l:16-cr-072. Doc. 1

(N.D. Ga. Feb. 16, 2016).)^

^ When deciding whether to grant a motion to dismiss, the Court may consider
public records without converting the motion into a motion for summary
judgment. Universal Express, Inc. v. U.S. S.E.C., 177 F. App'x 52, 53 (11th
Cir. 2006).

Plaintiff's

instant

complaint arises

out

arrest, which took place on February 24, 2016.
H

14.)

Plaintiff

alleges

that,

during

of

his

related

(Compl., Doc. 1,

this

arrest,

he

was

brought to the Richard B. Russel Federal Building in Atlanta,

Georgia, and forced "to sign a document in order to be released

from prison."
this

action

(Id.)

On November 21, 2017, Plaintiff initiated

asserting

"trespass on the case."

causes

of

action

(Doc. 1.)

for

"trespass"

and

In addition to the United

States, Plaintiff named three federal prosecutors and the Clerk
of Court for the Northern District of Georgia (the "Officers")
as

defendants

in

this

case.

(Id.)

Defendants

now

move

to

dismiss Plaintiff's complaint.

II.

DISCUSSION

Defendants move to dismiss Plaintiff's complaint for, inter

alia, improper venue and insufficient service of process.
A.

Proper Venue

Defendants argue that the Southern District of Georgia is
not an appropriate venue for this case.

When a defendant

objects to venue, the plaintiff has the burden of showing that
venue in the forum is appropriate.

Home Ins. Co. v. Thomas

Indus., Inc., 896 F.2d 1352, 1355 (11th Cir. 1990).

Any action brought against the United States under the
Federal

Tort

Claims

Act

("FTCA"),

28

U.S.C.

§

1346,

may

be

prosecuted in the judicial district (1) where the plaintiff
resides or (2)

where the act complained of

U.S.C. § 1402(b).

took place.

28

Plaintiff's residence - 2295 Newnan Street,

East Point, Georgia, - and the facts giving rise to Plaintiff's

complaint are located within the Northern District of Georgia.
(See Compl. H 14; Doc. 1, at 8.)

Thus, Plaintiff has not

carried his burden of establishing that this District is the

proper venue for Plaintiff's claims against the United States.
Venue is also inappropriate with respect to Plaintiff's

claims against the Officers.
federal

officer,

venue

is

In an action against an individual
determined

in

accordance

with

28

U.S.C. § 1391(b), which provides that a civil action may be
brought in

(1)

a

judicial

district

in

which

any

defendant

resides, if all defendants are residents of the State
in which the district is located;

(2) a judicial district in which a substantial part of
the events or omissions giving rise to the claim
occurred, or a substantial part of property that is
the subject of the action is situated; or

(3) if there is no district in which an action may
otherwise be brought as provided in this section, any

judicial district in which any defendant is subject to
the court's personal jurisdiction with respect to such
action.

^ Although Plaintiff does not identify the FTCA in his complaint, the FTCA is
the exclusive means of recovery in actions against the United States.
U.S.C. § 2679(b)(1).

28

Once more, the facts of Plaintiff's complaint took place in the
Northern District of Georgia.

claim

that

any

of

the

Additionally, Plaintiff does not

Officers

reside

within

the

Southern

District of Georgia or that there is no other district in which
this action may be brought.

Therefore, this District is not a

proper venue for Plaintiff's claims against the Officers.
When venue is improper, a court "shall dismiss, or if it
be

in

the

interest

of

justice,

transfer

such

case

district . . . in which it could have been brought,"

§ 1406(a).
could

have

to

any

28 U.S.C.

While the Court recognizes that Plaintiff's case
been filed

in

the

Northern District

of

Georgia,

transfer is not appropriate because it would not be in the
interest of justice.

As explained below, even if this case was

transferred. Plaintiff's complaint would still be subject to
dismissal.

I. Service of Process

In addition to challenging venue. Defendants also point out

that Plaintiff has not properly served process on the United
States or any of the Officers.

A plaintiff must serve process

within ninety days after filing a complaint.

4(m).

Fed. R. Civ. P.

To serve process on the United States, a plaintiff must:

(A)(i)

deliver

complaint
district

to
in

a

the
which

copy

of

United
the

the

summons

States

action

is

and

attorney

of

the

for

the

brought—or

to

an

assistant United States attorney or clerical employee

whom the United States attorney
writing filed with court clerk—or

designates

in

a

(ii) send a copy by registered or certified mail
addressed to the civil process clerk at the United
States attorney's office;

(B) send a copy of each by registered or certified
mail to the Attorney General of the United States at
Washington, D.C.; and

(C) if the action challenges an order of a nonparty

agency or officer of the United States, send a copy of
each by registered or certified mail to the agency of
officer.

Fed. R. Civ. P. 4(i)(1).

To date. Plaintiff has not served a copy of the summons and

complaint on the Attorney General of the United States or the
United States Attorney for the Southern District of Georgia.
(See Peel Decl., Doc. 14-1, H 4; Doc. 4.)

Therefore, Plaintiff

has not perfected service on the United States.
Plaintiff has also failed to serve process on the Officers.

The

procedure for

serving an officer of

the

United States

depends on whether the action is brought against the officer in
his individual or official capacity.^

To sue an officer in his

individual capacity, a plaintiff must serve both the United

^ Plaintiff's complaint does not designate whether the Officers are sued in
their individual or official capacities.

Plaintiffs, however, "are not

required to designate with specific words in the pleadings that they are
bringing a claim against defendants in their individual or official
capacities, or both." Young Apartments, Inc. v. Town of Jupiter, Fla., 529
F.3d 1027, 1047 (11th Cir.2008). "When it is not clear in which capacity the
defendants are sued, the course of proceedings typically indicates the nature

of the liability sought to be imposed." Id. Based on the allegations in
Plaintiff's complaint, the Court assumes that Plaintiff intended to sue the
Officers in both their individual and official capacities.

States
Service

and

the

individual

officer.

Fed. R. Civ. P.

on

the

individual

officer in

his

individual

4{i){3).
capacity

must comply with Federal Rule of Civil Procedure 4(e), which

governs serving individual defendants.
may

be

effected

by

delivering

a

Service on an individual

copy of

the

summons

and

complaint to the individual personally, by leaving copies at the
individual's usual place of abode, or by delivering to "an agent

authorized by appointment or

process."^

by law

Fed. R. Civ. P. 4(e)(2).

to receive

service

of

The plaintiff bears the

burden of proving that an agent is authorized to accept service
on behalf of a defendant.

Reeves v. Wilbanks, 542 F. App'x 742,

746 (11th Cir. 2013)

As previously mentioned, Plaintiff has not served process
on

the

United

States.

Plaintiff

has

also

process on any of the Officers directly.

failed

to

serve

Instead, Plaintiff

served "Judith Motz" and "Carmen Byron," who Plaintiff claims

are designated by law to accept service on behalf of the "United
States District Court Clerk" and the "United States Attorney,"

respectively.

(See Docs. 4-7.)

Plaintiff, however, presents no

evidence that Ms. Motz or Ms. Byron are authorized to accept
service on behalf of the Officers in their individual capacity.

^ Rule 4(e)(1) also allows service pursuant to the law of the state in which
the district court is located.
Georgia law provides for serving process on
individual defendants in much of the same manner as Rule 4(e)(2).
See
O.C.G.A. § 9-11-4(e)(7).

See Reeves, 542 F. App'x at 746.

Accordingly, Plaintiff has

failed to properly serve process against the Officers in their
individual capacities.

Plaintiff has also failed to serve process on the Officers

in their official capacity.

To serve process on an officer in

his official capacity,

plaintiff

the

must serve

the United

States and also send the officer a copy of the summons and of

the complaint by registered mail.

Fed. R. Civ. P. 4(i)(2).

In

the instant case. Plaintiff has done neither and therefore has
not served the Officers in their official capacities.

(See Peel

Decl. 1 4.)

Normally, failure

to

serve

process requires

dismissal.

Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir.

1990) (^^Service of process is a jurisdictional requirement: a

court lacks jurisdiction over the person of a defendant when
that defendant has not been served.").

But if the plaintiff

demonstrates good cause for the failure, the Court must extend
the time for service for an appropriate period.

4(m).

Fed. R. Civ. P.

"Good cause exists only when some outside factor, such as

reliance

on

faulty

advice,

negligence, prevented service."
Comm^rs,

476

F.3d

quotations omitted).

1277,

1281

rather

than

inadvertence

or

Lepone-Dempsey v. Carroll City
(11th

Cir.

2007)

(internal

In the instant case. Plaintiff has not

attempted to show good cause for his failure to timely serve

process on the Defendants.

Additionally, Plaintiff has made no

further effort to cure his defective service in the three months
since Defendants filed their motion to dismiss.

Although the

Court recognizes that Plaintiff is pro se, that status does not
excuse insufficient service of process.

See Albra v. Advan,

Inc., 490 F.3d 826, 829 (11th Cir. 2007) ([A]Ithough we are to

give liberal construction to the pleadings of pro se litigants,
we nevertheless have required them to conform to procedural
rules.")

(citation

omitted).

Accordingly,

dismissal

without

prejudice is appropriate.

III.

CONCLUSION

Given that neither the parties nor the facts of this case

take place within the Southern District of Georgia, venue is
inappropriate.

Because Plaintiff's complaint would ultimately

be dismissed for failure to serve process, transferring this
action is not in the interest of justice.

Upon due consideration. Plaintiff's complaint is DISMISSED
WITHOUT

PREJUDICE.

The

Clerk

deadlines and CLOSE this case.

is

directed

to

TERMINATE

all

ORDER ENTERED at Augusta, Georgia this

7!^ay

of June,

2018.

J./RAND^ HALL/ CHIEF JUDGE

unite^states district court
SOUTHERN DISTRICT OF GEORGIA