Ford et al v. Batts et al

Filing 5

MEMORANDUM OPINION by Senior Judge Thomas B. Russell on 12/21/2016 - Carey Batts' Motion to Dismiss, 4 , is GRANTED. An appropriate order will issue separate from this Memorandum Opinion. cc:counsel (DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:16-CV-00102-TBR
BOBBY FORD, et al.,

Plaintiffs,

v.
CAREY BATTS,

Defendant.
MEMORANDUM OPINION

Bobby Ford and Melvin Althizer filed this 42 U.S.C. § 1983 action against Carey
Batts, the Sheriff of Ballard County, Kentucky, on June 27, 2016. [See R. 1 at 2, ¶¶ 2–3
(Complaint).] The complaint, which lacked the signature of any attorney, [id. at 7], along
with a “summons,” were delivered to Sheriff Batts on July 12, 2016, [see R. 3 at 2 (Proof
of Service)]. Similar to the complaint, the “summons” was neither signed nor sealed by
the Clerk of the Court. [Id. at 1 (Summons).] In light of those defects, Sheriff Batts asks
the Court to dismiss this action for lack of personal jurisdiction pursuant to Federal Rule
of Civil Procedure 12(b)(2). [See R. 4 at 1–2 (Motion to Dismiss).] Despite ample
opportunity, Ford and Althizer elected to forego filing any response or correcting those
defects.
Federal Rule of Civil Procedure 4(a)(1) plainly requires that a summons “be
signed by the clerk” and “bear the court’s seal.” Fed. R. Civ. P. 4(a)(1)(F)–(G). “A
summons which is not signed and sealed by the Clerk of the Court does not confer
personal jurisdiction over the defendant.” Ayres v. Jacobs & Crumplar, P.A., 99 F.3d
565, 569 (3d Cir. 1996). In absence of jurisdiction of that sort, the action “should be
dismissed under Rule 12(b)(2).” Id. Here, Ford and Althizer failed to obtain a signed
and sealed summons for Sheriff Batts, who timely moved for dismissal. Accordingly,
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Ford and Althizer’s action must be dismissed, Mathies v. Silver, 266 F. App’x 138, 140
(3d Cir. 2008), though without prejudice, Intera Corp. v. Henderson, 428 F.3d 605, 620–
21 (6th Cir. 2005).
Carey Batts’ Motion to Dismiss, [R. 4], is GRANTED. An appropriate order will
issue separate from this Memorandum Opinion.
Date:

December 21, 2016

cc:

Counsel of Record

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