Shell v. Ohio Family Rights et al

Filing 29

Opinion and Order signed by Judge James S. Gwin on 3/1/16. The Court, for the reasons set forth in this order, grants the plaintiff's motion to strike, denies the motion of defendant Ray Lautenschlager to dismiss, and orders re-service o n defendant Rosalind "Roz" McAllister. The plaintiff shall perfect service under Rule 4(e) on defendant McAllister within 30 days of the filing of this order or the complaint as to said defendant will be dismissed. (Related Docs. 24 , 25 , 26 , and 28 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
-----------------------------------------------------SUZANNE SHELL,
Plaintiff,
vs.
OHIO FAMILY RIGHTS, et al.,
Defendants.
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CASE NO. 15-CV-1757
OPINION AND ORDER
[Resolving Docs. 24, 25, 26, 28]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff Suzanne Shell brings copyright claims against eight defendants. 1 Defendants
Rosalind “Roz” McAllister, Ray Lautenschlager, Ohio Family Rights, and Ohio Family Rights
National move to dismiss Plaintiff’s complaint for improper service. 2 Plaintiff opposes 3 and
moves to strike the motions of Ohio Family Rights and Ohio Family Rights National. 4 For the
following reasons, this Court GRANTS Plaintiff Shell’s motion to strike, DENIES Defendant
Lautenschlager’s motion to dismiss, and ORDERS re-service on Defendant McAllister.
I. Background
On August 31, 2015, Plaintiff Shell filed her original complaint and moved to proceed in
forma pauperis. 5 On September 22, 2015, this court granted Plaintiff’s motion to proceed in
forma pauperis. 6 On September 24, 2015, the U.S. Marshalls received the original summonses

1

Doc. 15.
Docs. 23, 24, 25, 26.
3
Doc. 27.
4
Doc. 28.
5
Docs. 1, 2.
6
Doc. 6.
2

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Case No. 15-cv-1757
Gwin, J.
for Defendants McAllister, Lautenschlager, Ohio Family Rights, and Ohio Family Rights
National. 7 On November 9, 2015, service by certified mail returned unexecuted. 8
On December 4, 2015, Plaintiff Shell moved to extend her time to perfect service on
Defendants. 9 On January 6, 2016, this Court granted Plaintiff’s motion to extend time and gave
an additional 30 days running from the January 6, 2016 order. 10
On February 9, 2016, Plaintiff Shell filed Proof of Service forms for the four
Defendants. 11 These forms are all signed by Reverend Tony Hoge. From the forms it appears
that Reverend Hoge personally served Defendant Lautenschlager on January 21, 2016 at 4:30
p.m. The other forms indicate that Reverend Hoge also left copies of Plaintiff’s first amended
complaint and summons with Ray Lautenschlager instead of personally serving the other
defendants. 12 Defendant Lautenschlager then handed a copy of the complaint, and possibly the
summons, to Defendant McAllister. 13 Defendant McAllister was not personally served with the
complaint and summons.
On February 17, 2016, Defendants McAllister, Lautenschlager, Ohio Family Rights, and
Ohio Family Rights National filed separate motions to dismiss for improper service. 14 On
February 22, 2016, Plaintiff Shell responded and filed a motion to strike the motions of
Defendants Ohio Family Rights and Ohio Family Rights National. 15

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Doc. 7.
Doc. 9.
9
Doc. 11.
10
Doc. 14.
11
Docs. 18, 20, 21, 22.
12
Plaintiff Shell likely perfected service on Defendants Ohio Family Rights and Ohio Family Rights National since
Defendant Lautenschlager is the president of both organizations. See Fed. R. Civ. P. 4(h)(1)(B).
13
See Doc. 23 at 1.
14
Docs. 23, 24, 25, 26.
15
Docs. 27, 28.
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Case No. 15-cv-1757
Gwin, J.
II. Discussion
Plaintiff’s Motion to Strike
Plaintiff moves to strike the motions to dismiss of Defendants Ohio Family Rights and
Ohio Family Rights National. Defendant Lautenschlager, an officer of both Ohio Family Rights
and Ohio Family Rights National, wrote and filed these motions to dismiss in addition to his own
motion to dismiss. Defendant Lautenschlager is not a licensed attorney.
Officers of business associations and organizations may not appear pro se in federal court
to represent their organizations. 16 Therefore, Defendants Ohio Family Rights’ and Ohio Family
Rights National’s motions to dismiss are not properly filed. The Court GRANTS Plaintiff
Shell’s motion to strike Defendants’ motions to dismiss.
Defendant Lautenschlager’s Motion to Dismiss
Defendant Lautenschlager moves to dismiss the complaint against him for improper
service. However, Plaintiff filed proof of service showing service on Defendant Lautenschlager.
The form indicates that Reverend Hoge personally served Defendant Lautenschlager. 17
Defendant Lautenschlager admits that he received a copy of the complaint and summons in this
case. 18 Service on Defendant Lautenschlager was proper.
Defendant Lautenschlager also argues that this Court should dismiss the complaint
because Plaintiff Shell is prosecuting this case under a pseudonym. This argument loses. None of
the Defendants provide any supporting evidence for this contention. Moreover, the name
Suzanne Shell appears on the copyright documentation that forms the basis of the complaint.
This Court DENIES Defendant Lautenschlager’s motion to dismiss.

16

Dimercurio v. C.I.R., 103 A.F.T.R.2d 2009-1288 (6th Cir. 2009) (citing Rowland v. California Men’s Colony, 506
U.S. 194, 202 (1993)); Harris v. Akron Dep’t of Pub. Health, 10 F. App’x 316, 319 (6th Cir. 2001).
17
Doc. 18.
18
Doc. 24 at 1–2.

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Case No. 15-cv-1757
Gwin, J.
Defendant McAllister’s Motion to Dismiss
Defendant McAllister also moves to dismiss for improper service. Under Federal Rule of
Civil Procedure 4(e)(2)(A)-(C), 19 service may be perfected by personally serving a defendant,
leaving a copy of the summons and complaint at a defendant’s dwelling place with “someone of
suitable age and discretion who resides there” 20 or serving a defendant’s agent who has been
authorized to receive process on the defendant’s behalf. Plaintiff is unable to show that she
perfected service on Defendant McCallister in any of those ways.
First, Reverend Hoge’s personal service on Defendant Lautenschlager does not satisfy the
Rule 4(2)(2)(A) personal service method as to Defendant McCallister. Service must be perfected
as to each defendant.
Second, Plaintiff Shell did not perfect service under Rule 4(e)(2)(B). Though Defendant
Lautenschlager may be a person of “suitable age and discretion,” the address at which Reverend
Hoge served Defendant Lautenschlager is not Defendant McCallister’s home or dwelling place.
Finally, Plaintiff Shell makes some argument that she perfected service under Rule
4(e)(2)(C). However, Plaintiff does not make a sufficient showing of service under this method.
Plaintiff filed a document titled “DMCA Counter-Notice” electronically signed by Roz
McAllister. That document says that Defendant McAllister “agree[s] to accept service of process
from the person who provided notification of allegedly infringing content or that person’s
agent.” 21 However, the Court does not have any information to determine “who provided
notification of allegedly infringing content” to Defendant McAllister. Without knowing whether
Defendant Lautenschlager “provided notification of allegedly infringing content” to Defendant
McAllister, the Court cannot rule that Plaintiff Shell perfected service by “delivering [the
19

Plaintiff Shell does not argue that she perfected service under Ohio Law to satisfy Rule 4(e)(1).
Fed. R. Civ. P. 4(e)(2)(B).
21
Doc. 1-1.
20

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Case No. 15-cv-1757
Gwin, J.
complaint and summons] to an agent authorized by appointment . . . to receive service of
process” 22 on behalf of Defendant McAllister.
Plaintiff Shell has not perfected service on Defendant McAllister within the time limits
under Rule 4(m). However, Plaintiff Shell shows good cause for the delay in perfecting service.
Therefore, this Court ORDERS that Plaintiff Shell perfect service under Rule 4(e) on Defendant
McAllister within 30 days of the filing of this order or the complaint will be dismissed against
Defendant McAllister. 23

IT IS SO ORDERED.

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: March 1, 2016

22

Fed. R. Civ. P. 4 (e)(2)(C).
See Advisory Committee’s Comments on 1993 Amendments to Fed. R. Civ. P. 4, subsection (m) (“The district
court should also take care to protect pro se plaintiffs from consequences of confusion or delay attending the
resolution of an in forma pauperis petition.” (citing Robinson v. America’s Best Contacts & Eyeglasses, 876 F.2d
596 (7th Cir.1989)); Advisory Committee’s Comments on 2015 Amendments to Fed. R. Civ. P. 4, subsection (m)
(“Shortening the presumptive time for service [from 120 days to 90 days] will increase the frequency of occasions to
extend the time for good cause. More time may be needed, for example, when a request to waive service fails, a
defendant is difficult to serve, or a marshal is to make service in an in forma pauperis action.”).

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