Smith v. Parks et al

Filing 17

MEMORANDUM OPINION & ORDER: 1. Plaintiff is GRANTED an extension of time until March 23, 2015, to effectuate service on all defendants; 2. Defendants Brad Hislope and the City of Harrodsburg's motion to dismiss 3 is DENIED WITHOUT PREJUDICE. 3. Defendant Paul Parks's motion to dismiss 5 is DENIED WITHOUTPREJUDICE; 4. Plaintiff Michael Smiths Motion for Hearing 15 is DENIED AS MOOT as plaintiff has withdrawn this motion; and 5. Plaintiff Michael Smith's Motion for Order 16 is DENIED AS PREMATURE as the parties have not yet exchanged information through discovery. After proper service and answers, the Court will enter a scheduling order explaining how the parties should proceed with discovery and dispositive motions. Signed by Judge Karen K. Caldwell on 2/23/15.(LC)cc: COR, Plaintiff via U.S. Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
MICHAEL R. SMITH,

CIVIL ACTION NO. 5:14-260-KKC

Plaintiff,
V.

MEMORANDUM OPINION AND
ORDER

PAUL PARKS, BRAD HISLOPE, and
CITY OF HARRODSBURG,
Defendants.

*** *** ***
This matter is before the Court on two motions to dismiss (DE 3 and 5) filed by
defendants Paul Parks, Brad Hislope, and the City of Harrodsburg. For the reasons stated
below, defendants’ motions will be denied without prejudice.
1. Background
On June 5, 2014, plaintiff Michael R. Smith, proceeding pro se, filed a complaint in
Fayette Circuit Court against Mercer County Deputy Sheriff Paul Parks, Harrodsburg
Police Officer Brad Hislope, and the City of Harrodsburg. (DE 1-3). Plaintiff alleges that he
was the victim of racial discrimination by Deputy Parks and Officer Hislope and seeks
damages against them and the City of Harrodsburg. He also asserts a malicious prosecution
claim against Deputy Parks. At plaintiff’s direction, summonses were issued by certified
mail to Mercer County Attorney Ted Dean as the service of process agent for each
defendant. (DE 1-3, p. 27-30).
On July 1, 2014, defendants timely removed the action to this Court. (DE 1). On
November 18, 2014, Officer Hislope and the City of Harrodsburg filed a motion to dismiss
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asserting a lack of personal jurisdiction due to insufficiency of service of process pursuant to
Federal Rules of Civil Procedure 12(b)(2), (4), and (5), as well as a failure to comply with the
time limits set forth in Rule 4(m). (DE 3). Deputy Parks then filed a motion to dismiss on
the same grounds. (DE 5). Defendants’ sole argument is that they have not been properly
served because Mercer County Attorney Ted Dean is not the correct service of process agent
for any of the defendants and the time period to cure defects in service has lapsed. Plaintiff
opposes both motions, arguing that Ted Dean was a proper service of process agent for each
defendant and that defendants’ removal of the action shows that they had actual notice of
the lawsuit. (DE 4, p. 2).
II. Discussion
As an initial matter, the Court must reject plaintiff’s argument that defendants waived
proper service because they demonstrated actual notice of the suit when they removed case
to this Court. The Sixth Circuit has stated that it will not permit actual knowledge of a
lawsuit to substitute for proper service of process. See LSJ Inv. Co., Inc. v. O.L.D., Inc., 167
F.3d 320, 322 (6th Cir. 1999); Friedman v. Estate of Presser, 929 F.2d 1151, 1155–56 (6th
Cir. 1991). Moreover, the United States Supreme Court has held that a defendant does not
waive objections to service of process or personal jurisdiction by removing a state court
action to federal court. See Morris & Co. v. Skandinavia Ins. Co., 279 U.S. 405, 409 (1929).
Failure to comply with state service-of-process rules can result in the dismissal of
removed cases. See Bates v. Harp, 573 F.2d 930, 933–34 (6th Cir. 1978). “In determining the
validity of service [in state court] prior to removal, a federal court must apply the law of the
state under which the service was made.” 4A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1082 (2d ed. 1987). However, after an action is removed,
federal law controls, and defects in service must be cured in accordance with the Federal
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Rules of Civil Procedure. Fed. R. Civ. P. 81(c)(1) (stating that “[t]hese rules apply to a civil
action after it is removed from a state court”); 28 U.S.C. § 1448 (“In all cases removed from
any State court to any district court of the United States in which any one or more of the
defendants has not been served with process or in which the service has not been perfected
prior to removal, or in which process served proves to be defective, such process or service
may be completed or new process issued in the same manner as in cases originally filed in
such district court.”).
Here, before this action was removed, service of process was controlled by the Kentucky
Rules of Civil Procedure. Proper service of process on individuals, like Officer Hislope and
Deputy Parks, is governed by Rule 4.04(2) of the Kentucky Rules of Civil Procedure, which
provides that:
Service shall be made upon an individual within this
Commonwealth, . . . by delivering a copy of the summons and of
the complaint . . . to him personally or, if acceptance is refused
by offering personal delivery to such person, or by delivering a
copy of the summons and of the complaint . . . to an agent
authorized by appointment or by law to receive service of
process for such individual.
Ky. R. Civ. P. 4.04(2). It is undisputed that plaintiff did not personally serve Officer Hislope
or Deputy Parks, and despite plaintiff’s argument to the contrary, nothing suggests that
Mercer County Attorney Ted Dean was an agent authorized to accept service on behalf of
either defendant. Accordingly, proper service was not effectuated on Officer Hislope and
Deputy Parks prior to the removal of this action.
It also appears that the City of Harrodsburg was not properly served before this action
was removed. Rule 4.04(7) of the Kentucky Rules of Civil Procedure provides, in pertinent
part, that “[s]ervice shall be made upon a city by serving the chief executive officer thereof
or an official attorney thereof.” Ky. R. Civ. P. 4.04(7). While plaintiff served Mercer County
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Attorney Ted Dean, he is not the proper service of process agent for the City of Harrodsburg
because he is neither the city’s chief executive officer nor its official attorney. Mercer
County and the City of Harrodsburg do not have a consolidated city-county government.
Thus, service of process on Mercer County Attorney Ted Dean did not constitute proper
service on the City of Harrodsburg.
Because this action has been removed, the Court must look to the Federal Rules of Civil
Procedure to cure the defects in service. See 28 U.S.C. § 1448; Fed. R. Civ. P. 81(c)(1).
Federal Rule of Civil Procedure 4 governs the issuance of summonses in this Court.
Subsection (m) provides the time limits for service. For cases originally filed in federal
court, Rule 4(m) permits service within 120 days after the filing of the complaint. However,
in a case removed from state court, the 120-day time period begins to run on the date of
removal. See Cowen v. Am. Med. Sys., Inc., 411 F. Supp. 2d 717, 721 (E.D. Mich. 2006)
(holding that “in a case removed from state court, the time [in Rule 4(m)] begins to run on
the date of removal”); Bruley v. Lincoln Prop. Co., N.C., Inc., 140 F.R.D. 452, 453 (D. Colo.
1991) (holding that the “120 day period for serving process starts to run on the date of
removal rather than the date the state complaint was filed”).
This case was removed on July 1, 2014, and no other service of process has been issued
or completed so the 120-day period to effectuate service has passed. However, Rule 4(m)
allows a district court to extend the time for proper service. In relevant part, Rule 4(m)
provides:
If a defendant is not served within 120 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. But if the plaintiff shows good cause for the failure, the
court must extend the time for service for an appropriate
period.
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Fed. R. Civ. P. 4(m).
Courts have held that the first sentence of Rule 4(m) allows a district court to extend
the time to effectuate service, even absent a showing of good cause. See, e.g., Stewart v.
Tenn. Valley Auth., 238 F.3d 424, 2000 WL 1785749, at *1 (6th Cir. Nov. 21, 2000)
(unpublished table decision) (“[T]he court has discretion to permit late service even absent a
showing of good cause.”); Kinney v. Lexington-Fayette Urban Cnty. Gov't, No. 5:12-360-KKC,
2013 WL 3973172, at *2 (E.D. Ky. Aug. 1, 2013) (stating that even when no good cause has
been shown, “the Court must still determine if it should exercise its discretion to expand
the time for service”); Wise v. Dep’t of Def., 196 F.R.D. 52, 55–56 (S.D. Ohio 1999)
(concluding that the district court had discretion to extend the 120-day period to effect
service, “pursuant to the first clause of Rule 4(m), even absent a showing of good cause”);
see also Henderson v. United States, 517 U.S. 654, 662 (1996) (stating in dicta that “in 1993
amendments to the Rules, courts have been accorded discretion to enlarge the 120-day
period ‘even if there is no good cause shown’”); Fed. R. Civ. P. 4(m) advisory committee’s
notes (“The new subdivision explicitly provides that the court shall allow additional time if
there is good cause for the plaintiff’s failure to effect service in the prescribed 120 days, and
authorizes the court to relieve a plaintiff of the consequences of an application of this
subdivision even if there is no good cause shown.”). Courts in this Circuit have outlined
several factors to consider in making this decision, specifically:
(1) whether a significant extension of time was required; (2)
whether an extension of time would prejudice the defendant
other than the inherent ‘prejudice’ in having to defend the suit;
(3) whether the defendant had actual notice of the lawsuit; (4)
whether a dismissal without prejudice would substantially
prejudice the plaintiff . . . and (5) whether the plaintiff had
made any good faith efforts at effecting proper service of
process.
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Kinney, 2013 WL 3973172, at *2 (quoting Kirk v. Muskingum Cnty. Ohio, No. 2:09–CV–
00583, 2011 WL 1480136, at *5 (S.D. Ohio Apr. 19, 2011)).
Here, there is no reason to question plaintiff’s ability to promptly effectuate service now.
Plaintiff attempted service on all defendants at the time of the filing of his complaint in
state court. The second and third factors also weigh in plaintiff’s favor. All defendants had
actual notice of the lawsuit because they jointly removed the case to this Court. Beyond the
additional passage of time since the complaint was filed, the Court finds no additional
prejudice to defendants, and they have not pointed to any prejudice in their motions to
dismiss. However, it does not appear that plaintiff would suffer substantial prejudice if the
action were dismissed without prejudice. Finally, considering that plaintiff is not
represented by counsel, he did make an initial, good-faith attempt to serve Deputy Parks,
Officer Hislope, and the City of Harrodsburg when he served Mercer County Attorney Ted
Dean. Overall, the factors weigh in favor of allowing plaintiff a brief extension of time
under Rule 4(m) to effectuate service. No other extensions will be granted without a
showing of good cause.
Plaintiff should first consult subsections (a), (b), and (c) of Rule 4 of the Federal Rules of
Civil Procedure to determine the necessary contents and procedure for an issuance of a
summons in federal court. Plaintiff should then serve Officer Hislope and Deputy Parks in
accordance with Rule 4(e) of the Federal Rules of Civil Procedure, which provides:
Unless federal law provides otherwise, an individual—other
than a minor, an incompetent person, or a person whose waiver
has been filed—may be served in a judicial district of the
United States by:
(1) following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where the
district court is located or where service is made; or
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(2) doing any of the following:
(A) delivering a copy of the summons and of the
complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or
usual place of abode with someone of suitable age and
discretion who resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e). Plaintiff should serve the City of Harrodsburg in accordance with Rule
4(j)(2) of the Federal Rules of Civil Procedure, which provides:
(2) State or Local Government. A state, a municipal
corporation, or any other state-created governmental
organization that is subject to suit must be served by:
(A) delivering a copy of the summons and of the
complaint to its chief executive officer; or
(B) serving a copy of each in the manner prescribed by
that state's law for serving a summons or like process on
such a defendant.
Fed. R. Civ. P. 4(j)(2). The Court will not dismiss plaintiff’s complaint at this time, but the
Court reserves the right to reconsider dismissal under Rule 4(m) if the plaintiff fails to
effectuate proper service of process by the deadline imposed by the Court.
III. Conclusion
Accordingly, IT IS ORDERED as follows:
1. Plaintiff is GRANTED an extension of time until March 23, 2015, to effectuate
service on all defendants;
2. Defendants Brad Hislope and the City of Harrodsburg’s motion to dismiss (DE 3) is
DENIED WITHOUT PREJUDICE;

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3. Defendant Paul Parks’s motion to dismiss (DE 5) is DENIED WITHOUT
PREJUDICE;
4. Plaintiff Michael Smith’s Motion for Hearing (DE 15) is DENIED AS MOOT as
plaintiff has withdrawn this motion; and
5. Plaintiff Michael Smith’s Motion for Order (DE 16) is DENIED AS PREMATURE
as the parties have not yet exchanged information through discovery. After proper
service and answers, the Court will enter a scheduling order explaining how the
parties should proceed with discovery and dispositive motions.
This order does not preclude defendants from filing a renewed motion to dismiss for
insufficient service of process if plaintiff does not properly serve defendants by March 23,
2015.
Dated February 23, 2015.

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