Ambeau v. Jefferson Comprehensive Health Center et al

Filing 34

Memorandum Opinion and Order granting re 21 MOTION to Dismiss defendants Jefferson Comprehensive Health Center, Inc., and the Board of Directors of Jefferson Comprehensive Health Center, Inc. A separate judgment will be entered. Signed by District Judge Tom S. Lee on 8/26/62 (LWE) Modified on 8/26/2013 to reflect that a copy of this opinion and NEF were mailed to plaintiff at 7 Primrose Lane, Natchez, MS 39120 (LWE).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
TARSHA AMBEAU
VS.

PLAINTIFF
CIVIL ACTION NO. 3:13CV208TSL-JMR

JEFFERSON COMPREHENSIVE HEALTH CENTER,
INC., JEFFERSON COMPREHENSIVE HEALTH
CENTER BOARD, COLUMBIA CASUALTY
COMPANY, AMFED NATIONAL INSURANCE COMPANY

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of purported
defendants Jefferson Comprehensive Health Center, Inc. and the
Board of Directors of Jefferson Comprehensive Health Center, Inc.
(collectively JCHC), to dismiss for insufficiency of process and
service of process.
the motion.

Plaintiff Tarsha Ambeau has not responded to

The court, having considered the motion and

accompanying memorandum of authorities, concludes that the motion
is well taken and should be granted.
Plaintiff Tarsha Ambeau filed her complaint in this cause
against JCHC and others on April 8, 2013 complaining of alleged
race, sex and national origin discrimination and retaliation.

On

April 10, 2013, Ambeau attempted to serve process on JCHC by
sending copies of the summons and complaint to JCHC’s executive
director, Shirley Ellis-Stampley, via certified mail with a return
receipt.

Ellis received the documents on April 11, 2013.

However, as JCHC correctly points out in its motion to dismiss,
this was not a proper method of service on JCHC.
Federal Rule of Civil Procedure 4 provides that a corporation
must be served "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" or by following the dictates of applicable state law
regarding service of an individual.
4(h)(1)(B); 4(e)(1); 12(b)(5).

See Fed. R. Civ. P.

Rule 4(d)(2) of the Federal Rules

authorizes a plaintiff to mail the defendant a request to waive
personal service along with an acknowledgment form; but if the
defendant does not waive service of process by returning the
acknowledgment form within the prescribed time, the plaintiff must
then serve the defendant personally.

See Larson v. Mayo Med.

Ctr., 218 F. 3d 863, 867-68 (8th Cir. 2000).

In this case, Ambeau

did include with the summons and complaint mailed to EllisStampley a request for waiver of personal service of process and
she did not personally deliver a copy of the summons and complaint
to any officer, managing or general agent or other agent
authorized to receive service of process for JCHC.
Mississippi Rule of Civil Procedure Rule 4(d)(4) requires
that service upon a “domestic or foreign corporation or upon a
partnership or other unincorporated association” be made by
“delivering a copy of the summons and of the complaint to an
2

officer, a managing or general agent, or to any other agent
authorized by appointment or by law to receive process.”

Rule

4(c)(3)(A) authorizes service on a corporate defendant “by mailing
a copy of the summons and of the complaint (by first-class mail,
postage prepaid) to the person to be served, together with two
copies of a notice and acknowledgment conforming substantially to
Form 1-B and a return envelope, postage prepaid, addressed to the
sender.”

“If no acknowledgment of service under this

subdivision of this rule is received by the sender within 20 days
after the date of mailing, service of such summons and complaint
may be made in any other manner permitted by this rule.”
4(c)(3)(B).

Id. at

Ambeau did not send JCHC any copies of a notice and

acknowledgement as required by this rule, and she did not
personally serve this defendant.

Thus, service of process was not

proper under state law.
JCHC contends the court should dismiss plaintiff’s complaint
for insufficient service of process.

The Fifth Circuit has held

that a litigant's pro se status does not excuse her failure to
effect service of process, Thrasher v. City of Amarillo, 709 F.3d
509, 512 (5th Cir. 2013), but it has also held that “‘[p]ro se
litigants are allowed more latitude than litigants represented by
counsel to correct defects in service of process and
pleadings[,]’” Lisson v. ING GROEP N.V., 262 Fed. Appx. 567, 571,

3

2007 WL 2962521, 4 (5th Cir. 2007) (quoting Moore v. Agency for
Int'l Development, 994 F.2d 874, 876 (D.C. Cir. 1993)).
Federal Rule of Civil Procedure 4(m) provides in pertinent
part:
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.
Plaintiff filed her complaint in this cause on April 8, 2013.
Thus, at the time JCHC filed its motion to dismiss on July 12, the
motion was premature as 120 days had not elapsed.

See McGinnis v.

Shalala, 2 F.3d 548, 551 (5th Cir. 1993) (holding that “until that
120–day period has expired, any attempt to seek dismissal on the
grounds of defective service clearly would be premature”).
Indeed, plaintiff still had 26 days within which to effect service
of process on JCHC.

Yet, despite being placed on notice by

defendant’s motion that her original attempt at service was
ineffective, she failed either to attempt to make proper service
on JCHC or to respond to the motion and defend her original
attempt at service.

Under the circumstances, the court finds that

dismissal is warranted.

See Sys. Signs Supplies v. U.S. Dep't of

Justice, 903 F.2d 1011, 1013 (5th Cir. 1990) (finding no abuse of
discretion in dismissal for insufficient service of process where

4

pro se plaintiff “had ample notice of a defect, but did not
attempt correction within the statutory period”).
Accordingly, it is ordered that the motion of JCHC to dismiss
is granted.
A separate judgment will be entered in accordance with the
Federal Rules of Civil Procedure.
SO ORDERED this 26th day of August, 2013.

/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE

5