Honeycutt v. United States Postal Service
ORDER granting 7 Motion to Dismiss. Signed by District Judge Max O. Cogburn, Jr on 7/14/2021. (Pro se litigant served by US Mail.)(ams)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
UNITED STATES POSTAL SERVICE,
THIS MATTER is before the Court on two Motions to Dismiss: the first on the grounds
that service was insufficient as a matter of law, and the second on the grounds that Plaintiff failed
to state a claim upon which relief may be granted. The motions have been made pursuant to Federal
Rules of Procedures 12(b)(5) and (6). (Doc. No. 7 at 1).
Plaintiff commenced this action against the United States Postal Service (“USPS”) by filing
a complaint on August 13, 2020. (Doc. No. 1). The complaint alleges Defendant violated Plaintiff’s
Due Process rights pursuant to 18 U.S.C. § 1983 by removing Plaintiff from the public entrance
of the Post Office while he was recording video “in [his] capacity as an independent investigative
journalist,” and banning him from the post office at a later date. (Id. at 1). The complaint seeks
injunctive and declaratory relief, as well as all other applicable relief. (Id.)
On February 23, 2021, this Court ordered Plaintiff to Show Cause as to why this matter
should not be dismissed for failure to prosecute after sending ineffective service of the original
complaint. (Doc. No. 3). Plaintiff responded on March 17, stating he had served Defendant
properly and is now seeking a default judgement. (Doc. No. 4). On March 25, this Court then
ordered Plaintiff to serve Defendant according to Federal Rule of Civil Procedure 4(i) within thirty
days. (Doc. No. 6 at 3). On April 23, Plaintiff submitted a certificate of service, signed only by
himself, stating he has served the General Counsel of the USPS, and a waiver of the service of
summons, also signed only by himself. (Doc. No. 9 at 3-4). On April 24, Defendant filed a Motion
to Dismiss for Insufficient Service and a Motion to Dismiss for Failure to State a Claim. (Doc. No.
7 at 1). Finally, on May 26, Plaintiff filed a response to Defendant’s motions, stating the Motion
to Dismiss for Insufficient Service is moot. (Doc. No. 10 at 1).
STANDARD OF REVIEW
A court cannot obtain jurisdiction over a defendant without that defendant first being
served with process. See Mid-Continent Wood Prods., Inc. v. Harris, 936 F.2d 297, 301 (7th Cir.),
reh'g en banc denied, 1991 WL 117311 (7th Cir. 1991) (“The court has long recognized that valid
service of process is necessary in order to assert personal jurisdiction over a defendant.”); Hickory
Travel Sys., Inc. v. Tui AG, 213 F.R.D. 547, 551 (N.D. Cal. 2003) (“A party must be properly
served for the Court to obtain personal jurisdiction over that party.”). Therefore, if process or
service is insufficient, the court lacks the jurisdiction over the defendant and a judgment entered
therein is invalid. See Recreational Props., Inc., v. Sw. Mortg. Serv. Corp., 804 F. 2d 311, 314 (5th
Cir. 1986) (“If a court lacks jurisdiction over the parties because of insufficient service of process,
the judgment is void and the district court must set it aside.”).
“A Rule 12(b)(5) motion is a proper means of raising any procedural defense related to
service.” Wilson v. Kenny, 941 F.2d 1208 (4th Cir. 1991). A United States district court can grant
a defendant’s Rule 12(b)(5) motion to dismiss if the district court deems that there was insufficient
service of process. See Hyman v. City of Gastonia, 466 F.3d 284, 286 (4th Cir. 2006). Once the
defendant challenges service, “[t]he plaintiff bears the burden of establishing that service of
process has been accomplished in a manner that complies with Rule 4” of the Federal Rules of
Civil Procedure. Plant Genetic Sys., N.V., v. Ciba Seeds, 933 F. Supp. 519, 526 (M.D.N.C. 1996);
see Hickory, 213 F.R.D. at 551. Rule 4 is “there to be followed, and plain requirements for the
means of effecting service of process may not be ignored.” Armco, Inc. v. Penrod-Stauffer Bldg.
Sys., Inc., 733 F.2d 1087, 1089 (4th Cir.1984). Thus, a court may properly dismiss a complaint for
the plaintiff’s failure to comply with Rule 4. See Brown v. Blue Cross & Blue Shield of N.C., 226
F.R.D. 526 (M.D.N.C. 2004).
Federal Rule of Civil Procedure 12(b)(6) provides that a motion may be dismissed for
failure to state a claim upon which relief can be granted. A motion to dismiss pursuant to Rule
12(b)(6) tests the sufficiency of the complaint without resolving contests of fact or the merits of a
claim. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). Thus, the Rule
12(b)(6) inquiry is limited to determining if the allegations constitute “a short and plain statement
of the claim showing the pleader is entitled to relief” pursuant to Federal Rule of Civil Procedure
8(a)(2). To survive a defendant’s motion to dismiss, factual allegations in the complaint must be
sufficient to “raise a right to relief above a speculative level.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). Thus, a complaint will survive if it contains “enough facts to state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570).
For the purposes of a Rule 12(b)(6) analysis, a claim has facial plausibility “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” (Id.) (quoting Twombly, 550 U.S. at 556). The
Court must draw all reasonable factual inferences in favor of the plaintiff. Priority Auto Grp., Inc.
v. Ford Motor Co., 757 F.3d 137, 139 (4th Cir. 2014). In a Rule 12(b)(6) analysis, the Court must
separate facts from legal conclusions, as mere conclusions are not entitled to a presumption of
truth. Iqbal, 556 U.S. at 678. Importantly, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” (Id.). However, well-pleaded
factual allegations are entitled to a presumption of truth, and the court should determine whether
the allegations plausibly give rise to an entitlement to relief. (Id. at 679).
A. Insufficient Service of Process
“In the absence of service of process (or waiver of service by the defendant), a court
ordinarily may not exercise power over a party the complaint names as defendant.” Murphy Bros.
v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). “Before a court may exercise personal
jurisdiction over a defendant, there must be more than notice to the defendant and a constitutionally
sufficient relationship between the defendant and the forum. There also must be a basis for the
defendant's amenability to service of summons. Absent consent, this means there must be
authorization for service of summons on the defendant.” Omni Capital Int’l, Ltd. v. Rudolf Wolff
& Co., 484 U.S. 97, 104 (1987). A plaintiff’s pro se status is insufficient to establish good cause
justifying a failure of service, even where the pro se plaintiff mistakenly believes that service was
made properly. Hansan v. Fairfax Cty. Sch. Bd., 405 Fed. Appx. 793, 794 (4th Cir. 2010).
Federal Rule of Civil Procedure 4 sets forth the formal requirements for the issuance of a
summons and for service of process in proceedings brought in federal court. Rule 4(c)(2) states
that service must be effected by “any person who is at least 18 years old and not a party.” In order
to prove service that is not made “by a United States Marshal or deputy marshal, proof must be
by the server’s affidavit.” FED. R. CIV. P. 4(l)(1).
To serve an agency of the United States, a person “must serve the United States and also
send a copy of the summons and of the complaint by registered or certified mail to the agency.”
FED. R. CIV. P. 4(i)(2). To serve the United States in the instant case, Plaintiff must do two things:
“deliver a copy of the summons and complaint to the United States Attorney for the district where
the action is brought,” FED. R. CIV. P. 4(i)(1)(A)(ii), or “send a copy of each by registered or
certified mail to the civil-process clerk at the United States attorney’s office,” FED. R. CIV. P.
4(i)(1)(A)(ii); and, “send a copy of each by registered or certified mail to the Attorney General
of the United States.” FED. R. CIV. P. 4(i)(1)(B). To serve the agency—the USPS—a person must
serve the General Counsel of the USPS. 39 C.F.R. § 2.2.
This Court has already determined the initial service attempt in August of 2020 was
improper. (Doc. No. 6). Plaintiff’s second attempt at service was also improper for four reasons.
First, the “certificate of service,” (Doc. No. 9 at 3), that Plaintiff submitted is not an
affidavit as required by Federal Rule of Civil Procedure 4(l)(1).
Second, even if we are to assume the “certificate of service,” (Doc. No. 9 at 3), submitted
as proof of service on the General Counsel of the USPS qualifies as an affidavit, Rule 4(c)(2)
states that service must be effected by someone who is not a party to the suit. Since the certificate
of process was signed only by Plaintiff himself, the service is improper.
Third, even if the service to the General counsel were proper, Plaintiff has provided no
proof that he has served the United States Attorney or the civil-process clerk in this district, nor
has Plaintiff provided proof that he has served the Attorney General of the United States. Both of
these are requirements to sue an agency of the United States. FED. R. CIV. P. 4(i)(2); see FED. R.
CIV. P. 4(i)(1).
Fourth, Plaintiff has submitted a “Waiver of the Service of Summons.” (Doc. No. 9 at 4).
Plaintiff himself signed his own name on the line reading: “[p]rinted name of party waiving
service of summons.” Id. This document, however, is for the party being served to sign; Plaintiff
is not entitled to waive the need for service unilaterally. See FED. R. CIV. P. 4(d)(1).
For the above reasons, service was not proper and therefore this complaint will be
dismissed for insufficient service of process.
B. Failure to State a Claim
Because the court resolves this case on Rule 12(b)(5) grounds, the Court will not proceed
to a 12(b)(6) analysis.
For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss for
Insufficient Service of Process; therefore, Plaintiff’s Complaint is dismissed WITHOUT
IT IS, THEREFORE, ORDERED that:
1. The Motion to Dismiss for Insufficient Service of Process, filed by Defendants, (Doc.
No. 7) is GRANTED.
Signed: July 14, 2021
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