Jackson-Bagley et al v. Central Transport Inc. et al

Filing 19

ORDER entered by Judge Nanette Laughrey. The Court strikes Plaintiffs' service of their Summons and Complaint on Defendants, 12 , 13 , and 14 . The service was improper under Federal Rule of Civil Procedure 4. Plaintiffs must file proof of service consistent with Federal Rule of Civil Procedure 4 on or before May 14, 2014. If Plaintiffs fail to comply with this Order, the Court will dismiss this case without prejudice and without further notice pursuant to Federal Rule of Civil Procedure 4(m). (Cross, Ashley)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI

KIMBERLY JACKSON-BAGLEY
and DARRYL BAGLEY,
Plaintiffs,
v.
CENTRAL TRANSPORT INC.,
AMERICAN GENERAL ANNUITY
SERVICE CORP., and AMERICAN
GENERAL LIFE INSURANCE CO.,
Defendants.

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Case No. 4:13-cv-00111-NKL

ORDER
For the reasons set forth below, the Court strikes Plaintiffs’ service of their
Summons and Complaint on Defendants. The service was improper under Federal Rule
of Civil Procedure 4. Plaintiffs must file proof of service consistent with Federal Rule of
Civil Procedure 4 on or before May 14, 2014. If Plaintiffs fail to comply with this Order,
the Court will dismiss this case without prejudice and without further notice pursuant to
Federal Rule of Civil Procedure 4(m).
I.

Background
Plaintiffs filed their Complaint against Central Transport Inc., American General

Annuity Service Corp., and American General Life Insurance Co. on December 30, 2013.
On February 12, 2014, the Court entered an Order on Pretrial Procedures, [Doc. 9],
ordering Plaintiffs to serve all Defendants within forty days of the date of the Order.
Plaintiffs submitted Proof of Service within that forty day deadline on March 21, 2014.
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[Docs. 12-14]. Plaintiffs’ Proof of Service was filled out by Plaintiffs and indicates
Plaintiffs attempted to serve the Defendants by USPS Certified Mail. The summons
Plaintiffs attempted to serve on each Defendant was not signed by the Clerk of Court.
On March 28, 2014, the Court entered an Order requiring Plaintiffs to show cause
by April 11, 2014, as to why their Complaint should not be dismissed for failure to
properly serve the Defendants. [Doc. 17]. The Court explained that service via Certified
Mail is not proper service and that Plaintiffs were required to follow both the Local Rules
and the Federal Rules of Civil Procedure, including Federal Rule of Civil Procedure 4.
[Doc. 17]. On April 8, 2014, Plaintiffs filed their response to the Court’s Order to Show
Cause and argued that service by Certified Mail was proper under Federal Rule of Civil
Procedure 4(h). [Doc. 18].
II.

Discussion
Federal Rule of Civil Procedure 4 governs how service of process is properly

executed on a defendant. In general, a summons must be served with a copy of the
complaint. Fed. R. Civ. Pro. 4(c)(1). A summons must be signed by the clerk. Id. at
Rule 4(a)(1)(F). Rule 4(h) governs service of a corporation. Rule 4(h) provides that
unless a corporation has waived service, a domestic corporation must be served:
(1)(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(1)(B) 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 and – if the agent is one authorized by statute and
the statute so requires – by also mailing a copy of each to the defendant[.]
Plaintiffs’ service of the summons and Complaint on Defendants is improper

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under Rule 4. First, copies of the summons provided by Plaintiffs as proof of service do
not contain the Clerk of Court’s signature. Second, Defendants have not waived service
(and there is no indication Plaintiffs have requested that Defendants waive service), and
Plaintiffs’ service is not proper under Rule 4(h). Plaintiffs’ service via Certified Mail
does not comply with Rule 4(h)(1)(B), which requires personal service on an officer,
managing or general agent, or any other agent authorized by law to receive service.
Plaintiffs argue Rule 4(h) allows service by mail, however, Rule 4(h)(1)(B) states that
proper service is made by “delivering a copy of the summons and of the complaint . . .
and – if the agent is one authorized by statute and the statute so requires – by also
mailing a copy of each to the defendant[.]” (emphasis added). Rule 4(h)(1)(B) does not
allow for service by mail alone.
Plaintiffs’ service is also improper under Rule 4(h)(1)(A) which allows service as
prescribed by Rule 4(e)(1). Rule 4(e)(1) states that “an individual . . . may be served . . .
by: (1) following state law for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is located or where service is
made[.]” The Court is located in the State of Missouri. Missouri Supreme Court Rule
54.16 allows service by first class mail if certain conditions are met. However, Plaintiffs
have not demonstrated their service via Certified Mail complied with the requirements in
Missouri Supreme Court Rule 54.16. For instance, Plaintiffs have not indicated whether
they sent two copies of a Notice and Acknowledgement form to Defendants or whether
Defendants returned the Notice of Acknowledgment forms. As to the states where
service is made, it appears from Plaintiffs’ Complaint and their attempts at service that
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Defendants may be served in Texas, Michigan, and New York. However, Plaintiffs’
have not demonstrated compliance with the service rules of any of these states. See Tex.
R. Civ. Pro. 103, 106; Mich. R. Civ. Pro. 2.105; NY CPLR § 308. Therefore, Plaintiffs’
service is not proper under either Federal Rule of Civil Procedure 4(h)(1)(A) or
4(h)(1)(B).
III.

Conclusion

Plaintiffs’ service of their Complaint and Summons is not proper under Federal
Rule of Civil Procedure 4, and therefore, the Court strikes the service. Plaintiffs must file
proof of service consistent with Federal Rule of Civil Procedure 4 on or before May 14,
2014. If Plaintiffs fail to comply with this Order, the Court will dismiss this case without
prejudice and without further notice pursuant to Federal Rule of Civil Procedure 4(m).

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: April 28, 2014
Jefferson City, Missouri

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