Evans v. Oktibbeha County, Mississippi et al
Filing
12
MEMORANDUM OPINION re 11 Order on Motion to Dismiss. Signed by District Judge Sharion Aycock on 7/29/2013. (psk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
ELIZABETH R. EVANS
V.
PLAINTIFF
CIVIL ACTION NO. 1:12CV247-SA-SAA
OKTIBBEHA COUNTY, MISSISSIPPI, GLENN
HAMILTON, INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS CIRCUIT CLERK OF OKTIBBEHA
COUNTY, MISSISSIPPI, MARVEL HOWARD, DANIEL
JACKSON, JOHN MONTGOMERY, ORLANDO K. TRAINER,
and JOE WILLIAMS, INDIVIDUALLY AND IN THEIR
OFFICIAL CAPACITIES AS MEMBERS OF THE BOARD
OF SUPERVISORS OF OKTIBBEHA COUNTY, MISSISSIPPI
DEFENDANTS
MEMORANDUM OPINION
Defendants Oktibbeha County, Glenn Hamilton, Marvel Howard, Daniel Jackson, John
Montgomery, Orlando Trainer, and Joe Williams jointly filed a Motion to Dismiss [4] for lack of
personal jurisdiction due to insufficient process and insufficient service of process. After
reviewing the motion, response, rules and authorities, the Court makes the following findings:
Plaintiff Elizabeth Evans filed this suit against Defendants on July 5, 2012. Hamilton is
the circuit clerk of Oktibbeha County; Howard, Jackson, Montgomery, and Williams serve on
the Board of Supervisors of Oktibbeha County (“Board”); and Trainer is the president of the
Board. On November 5, 2012, exactly 123 days after the suit was filed, Evans served summonses
on Defendants in this manner: (1) on Oktibbeha County by stating service upon Hamilton as the
county’s agent, but actually delivering summons to the County Administrator Don Posey; (2) on
Howard, Jackson, Montgomery, Williams, and Trainer by delivering summonses again to Don
Posey; and (3) on Hamilton no service was or has been made to this date.
The fact that Evans did not serve summonses within the 120 day statutory deadline of
Rule 4(m) of the Federal Rules of Civil Procedure is alone sufficient grounds to dismiss this case
as to Oktibbeha County and all of the members of the Board in their individual and official
capacities. The dismissal of this case, however, is further warranted by a plethora of defects in
service. The service of summons on Oktibbeha County fails also because it was not made on the
statutorily designated agent. Service upon a county in Mississippi shall be made by “delivering a
copy of the summons and complaint to the president or clerk of the board of supervisors.” Miss.
R. Civ. P. 4(d)(6). Neither Posey nor Hamilton are the president or clerk of the Board.
Next, the service of summons on each of the members of the Board being delivered to
Posey is insufficient. Under Federal Rule of Civil Procedure 4(e) and Mississippi Rule of Civil
Procedure 4(d)(1), Evans could have completed service of process upon each member of the
Board either by personal delivery to each member or his agent or by leaving a copy at each
individual’s place of abode with a suitable adult.
Therefore, Defendants’ Motion to Dismiss [4] is GRANTED and this case as to:
1. Oktibbeha County is DISMISSED for untimely and constitutionally insufficient
service of process;
2. Howard, Jackson, Montgomery, Trainer, and Williams is DISMISSED with respect to
both their individual and official capacities for untimely and constitutionally
insufficient service of process; and
3. Hamilton is DISMISSED for failure to serve process.
This case is hereby DISMISSED.
SO ORDERED this the 29th day of July, 2013.
/s/ Sharion Aycock________
U.S. DISTRICT JUDGE
2
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