Carver et al v. Citifinancial

Filing 20

MEMORANDUM OPINION AND ORDER granting 7 Defendant's Motion to Dismiss. Signed by Judge Greg N. Stivers on 4/14/2015. cc: Plaintiffs, pro se; Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:14-CV-00168-GNS-HBB

JERRI LAMARK CARVER, et al.

PLAINTIFFS

v.
CITIFINANCIAL

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant Citifinancial’s Motion to Dismiss (Def.’s
Mot. to Dismiss, DN 7). This motion is ripe for a decision, and for the reasons stated below, the
Court GRANTS Defendant’s Motion.
I. BACKGROUND
On November 20, 2014, Plaintiffs Jerri LaMark Carver (“J. L. Carver”), Mary Inez
Carver (“M. Carver”), and Willie Louis Wells (“Wells”) filed a pro se complaint alleging racial
discrimination in violation of the Civil Rights Act and discrimination on the basis of disability in
violation of the Americans with Disabilities Act. (Compl., DN 1). Plaintiffs also allege that
Defendant violated the Uniform Power of Attorney Act, failed to pursue the Home Affordable
Modification Program, violated a court order, and engaged in predatory lending. (Compl., DN 1).
On December 15, 2014, Citifinancial filed a motion to dismiss, asserting, inter alia, that
it had not been properly served. (Def.’s Mot. to Dismiss, DN 7). Responses to this motion were
due on January 8, 2015, per Local Rule 7.1(c).1 J. L. Carver filed a Motion for Amend Complaint
with Evidence on January 8, 2015. (Mot. for Am. Compl. with Evidence, DN 9). J. L. Carver

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“A party opposing a motion must file a response memorandum within twenty-one (21) days of
service of the motion.” LR 7.1(c).

then filed a Motion for Extension of Time on January 23, 2015 (Mot. for Extension of Time; DN
10), which Magistrate Judge Brennenstuhl granted (Order; DN 14). Magistrate Judge
Brennenstuhl granted leave for J. L. Carver to file an amended complaint (Order, DN 14), which
he has done (Am. Compl., DN 15). Magistrate Judge Brennenstuhl denied M. Carver and Wells a
further extension of time to respond to Defendant’s motion to dismiss (Order, DN 19), and they
have filed not responses to Defendant’s motion. The motion is thus ripe for review as to M.
Carver and Wells.2
II. JURISDICTION
The Complaint in this matter alleges violations of federal law. This Court has “original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331.
III. STANDARD OF REVIEW
The plaintiff bears the burden of perfecting service of process and showing that proper
service was made. Sawyer v. Lexington-Fayette Urban Cnty. Gov’t, 18 F. App’x 285, 287 (6th
Cir. 2001).
IV. DISCUSSION
In its Memorandum in Support of Its Motion to Dismiss, Citifinancial alleges that
Plaintiffs improperly served it in two ways: 1) by serving a branch of Citifinancial in Louisville,
Kentucky, rather than serving its designated agent for service of process through the Kentucky
Secretary of State; and 2) by having the Summons and Complaint served by one of the Plaintiffs.

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Where it occurs henceforth in this Memorandum Opinion and Order, “Plaintiffs” refers only to
M. Carver and Wells because Citifinancial’s motion to dismiss does not address J. L. Carver’s
Amended Complaint.
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Federal Rule of Civil Procedure 4(h)(1) states that a corporation must be served, in a
judicial district in the United States, in one of two ways: in accordance with Federal Rule of
Civil Procedure 4(e)(1); or “by delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or any other agent authorized by appointment or by law to
receive service of process.” Fed. R. Civ. P. 4(h)(1)(A)-(B). Federal Rule of Civil Procedure
4(e)(1) states that an individual may be served in accordance with state law where the district
court is located or the service is made. Fed. R. Civ. P. 4(e)(1). Citifinancial states that neither an
officer, a managing agent, a general agent, nor any other agent authorized by appointment or law
to receive service of process for it resides at that address. (Mem. in Supp. of Def.’s Mot. to
Dismiss, DN 7-1 at 14). Because service was not obtained pursuant to Rule 4(h)(1)(A), Plaintiffs
thus were required to serve Citifinancial pursuant to Kentucky law regarding service of process
on corporations pursuant to Rule 4(h)(1)(B) and 4(e)(1).
Kentucky Rule of Civil Procedure 4.04(5) dictates that a corporation must be served by
“serving an officer or managing agent thereof, or the chief agent in the county wherein the action
is brought, or any other agent authorized by appointment or by law to receive service on its
behalf.” Citifinancial asserts that the Louisville location is not its principal office, its registered
agent for service of process is not there, and it does not represent the address of any officer.
(Mem. in Supp. of Def.’s Mot. to Dismiss, DN 7-1 at 13-14). Because they did not serve
Citifinancial through either method dictated under the Rule 4(h)(1), Plaintiffs did not properly
serve Citifinancial.
Additionally, Federal Rule of Civil Procedure 4(c)(2) dictates that a party may not serve a
summons and complaint. Fed. R. Civ. P. 4(c)(2). If a party attempt to do so, improper service
results. Lee v. George, No. 3:11-CV-00607, 2012 WL 1833389, at *3 (W.D. Ky. May 18, 2012)

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(noting that service is improper where a plaintiff personally attempts to serve a defendant). J. L.
Carver is a plaintiff in this case. (Compl., DN 1; Am. Compl., DN 15). The summons served on
Citifinancial at 1850 S. Hurstbourne Parkway, Louisville, Kentucky, 40220, listed that it be
returned to LaMark Carver for Lord’s Legal. (DN 5 at 1). It was served on Citifinancial by
LaMark Carver, Captain of Steele Security. (DN 5 at 2). Both “LaMark Carvers” listed P.O. Box
766 in Bowling Green, Kentucky 42102, as their address, indicating that, titles notwithstanding,
they are the same LaMark Carver. (DN 5). Plaintiffs have not shown that J. L. Carver is not the
LaMark Carver who served Citifinancial as it alleges. The Court must conclude that J. L. Carver
served the Summons and Complaint on Citifinancial in violation of Rule 4(c)(2), resulting in
improper service.
“[W]ithout proper service of process, consent, waiver, or forfeiture, a court may not
exercise personal jurisdiction.” King v. Taylor, 694 F.3d 650 (6th Cir. 2012). The Court must
therefore dismiss this action on procedural grounds without reaching Defendant’s arguments on
the merits in its Motion to Dismiss. See Himmelreich v. Fed. Bureau of Prisons, 766 F.3d 576,
579 (6th Cir. 2014) (“[I]n the absence of jurisdiction, the court lacks the power to enter
judgment.”).
V. CONCLUSION
As discussed above, Plaintiffs have failed to show that Defendant was properly served.
Accordingly, IT IS HEREBY ORDERED THAT Defendant’s Motion to Dismiss (DN 7) is
GRANTED.

cc:

counsel of record
Plaintiffs, pro se

April 14, 2015

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