Carithers v. Bowling et al

Filing 108

ORDER denying 37 Second Motion to Dismiss. Signed by Neal B. Biggers on 9/27/2012. (llw)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
JASON CARITHERS
V.

PLAINTIFF
CIVIL ACTION NO. 1:11CV189-B-S

DWIGHT BOWLING, ET AL.

DEFENDANTS

ORDER DENYING SECOND MOTION TO DISMISS
Presently before the court is the defendant Monroe County School District’s Second
Motion to Dismiss. Upon due consideration, the court finds that the motion is not well taken and
should be denied.
The defendant moves to dismiss alleging deficient service of process because the
plaintiff’s process server placed the summons and complaint into the hands of Monroe County
School District (“MCSD”) Superintendent Scott Cantrell’s secretary, Kathy Roye, rather than in
the hands of Cantrell himself. The defendant asserts that Roye was not an authorized agent to
accept service of process on behalf of MCSD.
The process server attests that she could see Cantrell in his office and hear him on the
telephone when she handed the summons and complaint to Roye, who stated that she would give
the documents to Cantrell. Cantrell’s affidavit states that Roye entered his office to advise him
that he had a visitor. When he inquired as to who wanted to see him, Roye left his office and
returned with the summons and complaint.
Defendant MCSD filed its answer in this case on October 31, 2011. The answer admits
jurisdiction and venue over the defendant MCSD and does not make any allegations of defective
service of process. MCSD filed a motion to dismiss on the same day it filed its answer, and the

motion does not raise any service of process issues. MCSD did not raise the service of process
issue until it filed the present motion on February 3, 2012 – after the statute of limitations had
run in this action and past the point where the plaintiff could have corrected any defects in
service without leave of court.
The court finds that service was not defective in this case and that the plaintiff’s process
server accomplished delivery of the summons and complaint to Cantrell personally since Cantrell
was in the process server’s presence when the documents were delivered to Cantrell’s secretary
and since Cantrell did in fact receive the documents immediately. The argument that the process
server was required to place the documents literally into Cantrell’s hands as opposed to his
secretary’s hands is unpersuasive under the facts presented here. “[S]ervice is complete if a
defendant is in close proximity to a process server under such circumstances that a reasonable
person would be convinced that personal service of the summons is being attempted.” Slaeih v.
Zeineh, 539 F. Supp. 2d 864, 868-69 (S.D. Miss. 2008). The purpose of service of process is to
ensure that notice of the lawsuit is given to the party being served. Id. at 868. Clearly that end
was satisfied in this case.
For the foregoing reasons, the court finds that the defendant Monroe County School
District’s Second Motion to Dismiss should be and the same is hereby DENIED.
SO ORDERED AND ADJUDGED this, the 27th day of September, 2012.

/s/ Neal Biggers
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE

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