Finnell v. Eppans et al

Filing 29

OPINION AND ORDER adopting 24 Report and Recommendation, denying 11 Finnell's Motion for Default Judgment, and denying 17 Eppens' Motion to Dismiss. The Court extends the time for service through 8/31/21. This matter is remanded to the Magistrate Judge for further proceedings consistent with this opinion. Signed by Judge Douglas R. Cole on 6/4/21. (sct)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KYLE FINNELL,
Plaintiff,
Case No. 1:20-cv-337
JUDGE DOUGLAS R. COLE

v.
TIMOTHY EPPENS,
Defendant.

OPINION AND ORDER
This cause comes before the Court on Defendant Timothy Eppens’ Objections
(Doc. 26) to the January 8, 2021, Report and Recommendation (“R&R”, Doc. 24) of
Magistrate Judge Stephanie Bowman. As relevant here, the R&R recommends that
this Court (1) deny Plaintiff Kyle Finnell’s Motion for Default Judgment (Doc. 11),
and (2) deny Eppens’ Motion to Dismiss Finnell’s lawsuit against him for improper
service (Doc. 17). (See Doc. 24, #313).
Only Eppens objects to the R&R—Finnell does not. In his Objections, Eppens
argues that the Magistrate Judge erred in determining that service on Eppens
sufficed here, even though it was technically insufficient under the Federal Rules of
Civil Procedure. The Magistrate Judge based her decision partly on Finnell’s status
as a pro se prisoner litigant, and partly because the service had been consistent with
certain practices that had developed in the wake of the COVID-19 pandemic.
For the reasons set forth more fully below, the Court ADOPTS the R&R’s
bottom-line conclusions that (1) Finnell’s Motion for Default Judgment (Doc. 11)
should be denied and (2) Eppens’ Motion to Dismiss (Doc. 17) should be denied.

Although the Court disagrees with the R&R’s determination that service was proper,
the Court sua sponte extends the time for Finnell to serve Eppens with the Complaint
through August 31, 2021, and will entertain further requests for extension of that
time as needed. See Fed. R. Civ. P. 4(m). Accordingly, the Court DENIES Finnell’s
Motion for Default Judgement (Doc. 11) and DENIES Defendant’s Motion to Dismiss
(Doc. 17). In addition, the Court REMANDS the matter to the Magistrate Judge for
additional proceedings consistent with this Order. In doing so, the Court notes that
Eppens is also free to consider waiving service, especially given the demands that
COVID-19 has placed, and continues to place, on the resources that the Court uses to
effectuate service on behalf of pro se prisoner litigants.
BACKGROUND
The Complaint is the only source of “facts” regarding the underlying dispute.
Thus, the Court largely bases its background recitation here on those factual
allegations. But the Court also refers to the Magistrate Judge’s account of those
allegations in an earlier R&R in which she screened the Complaint for frivolousness
under 28 U.S.C. § 1915 and § 1915A. (Doc. 4). In that earlier R&R, the Magistrate
Judge recommended dismissal of all claims against any defendant other than Eppens,
a guard at the facility in which Finnell is incarcerated, who Finnell had sued in his
individual capacity. (Id. at #52). On June 30, 2020, the District Judge then assigned
to the case adopted that earlier R&R, and dismissed all claims against all other
defendants with prejudice. (Doc. 6). The case was subsequently reassigned to the
undersigned Judge on November 20, 2020. (Doc. 19).

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The gist of Finnell’s Complaint is that the officers in the Hamilton County
Justice Center are “acting as the common thug.” (Doc. 3, #33). His particular
Complaint appears to involve an incident that occurred on June 3, 2019. Finnell had
been to the courthouse that day, and upon his return he told unit staff that he wanted
lunch. When thirty minutes passed with no lunch appearing, he and Eppens had
“disrespectful words.” (Id.). Eppens then told Finnell to return to his cell, but Finnell
declined. An altercation ensued. Finnell claims that Eppens directed racial slurs at
him, and also threw Finnell into a wall. When Finnell looked back over his shoulder,
Eppens allegedly struck Finnell’s left eye with a closed fist. Other officers arrived at
the scene. Finnell claims he was placed in handcuffs, and taken to the facility’s
medical area, followed by transport to the UC Hospital. (Id. at #33–34).
As mentioned, the only claim that remains is Finnell’s claim against Eppens.
Finnell claims that Eppens’ conduct amounted to excessive use of force in violation of
Finnell’s constitutional rights. (In his Complaint, Finnell locates this right in the
Eighth Amendment. But, as the Magistrate Judge correctly noted, because Finnell
was a pretrial detainee at the time, the source of his right against excessive force
actually resides in the Fourteenth Amendment’s due process clause. (See Doc. 4, #48,
n.2). The difference, if any, between the standards under the two Amendments is
immaterial for purposes of this Opinion.)
The issue here, though, is not related to the merits. Rather, the instant dispute
involves service. And there is also a tale to tell on that front. The Complaint in this
action was originally docketed on June 15, 2020. After the Magistrate Judge screened

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the Complaint for frivolousness, the Magistrate Judge ordered service on the soleremaining defendant, Eppens. Under Fed. R. Civ. P. 4(m), which provides 90 days for
service, Finnell had until September 13, 2020, to accomplish the task. But the
reference to “Finnell” in the previous sentence is a bit misleading. Because Finnell is
incarcerated and proceeding pro se, the Clerk’s Office of this Court coordinates service
through the United States Marshals Service. See Fed. R. Civ. P. 4(c)(3) (noting that
the court “must … order [service by the United States marshal] if the plaintiff is
authorized to proceed in forma pauperis under 28 U.S.C. § 1915”).
Typically, the Marshals would perform personal service in such actions. In
June 2020, though, events were afoot that interfered with their normal practices on
that front. In particular, the COVID-19 pandemic was sweeping across the country,
indeed, around the world. Court systems nationwide were struggling with how best
to respond in order to ensure that their essential services could continue to operate
in ways that were cognizant of parties’ rights and also public health.
One response was that the Marshals altered their typical approach to service,
using certified mail to accomplish the task. But here, that created additional
problems. The Magistrate Judge ordered the Marshals to serve a copy of the
Complaint and Summons on “Timothy Eppans,” rather than “Timothy Eppens.”
Thus, when the Marshals sent certified mail in June 2020 to “Timothy Eppans” at
the Hamilton County Justice Center, where Eppens worked, it came back on August
21, 2020, marked “Return to Sender – Attempted, Not Known.”

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During the interim, on July 24, 2020, Finnell had filed a Motion for Default
Judgement (Doc. 11). He did so even though Eppens had not yet been properly served.
Based on the returned certified mail, the Magistrate Judge discovered the
spelling error. So, on August 21, 2020, she ordered the Complaint and Summons to
be served on “Timothy Eppens.” The Marshals again attempted to serve him by
certified mail, again at his place of work.
This time, Eppens received the Complaint (more on that below). But COVID19 presented one last wrinkle. The certified mail return receipt, which is typically
signed by someone at the addressee’s location, was instead signed by the postal
carrier who delivered it. That occurred because the United States Postal Service
(“USPS”) had adopted a signature policy for certified mail in response to the COVID19 pandemic. Rather than force the face-to-face interaction that a signature
requirement would otherwise entail, the USPS instructed its delivery personnel to
ensure that someone was at the address to receive the letter, to ask that person for
their name, and to then leave the letter where the person could get it. The mail carrier
then fills out the return receipt. So, here, the signature appears to be “GC Rt 232”
(which the Court takes as a reference to the postal carrier on Route 232), and the
return receipt also says received by “CO-19” (which the Court takes to be a reference
to COVID-19), and provides a date of October 8, 2020. (Doc. 23, #305). In short, the
mail carrier is affirming delivery to a person at the address, on that date, and
providing an explanation (COVID-19) as to why that person has not signed.

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As noted above, while no one at Eppens’ workplace technically signed for the
letter, it is nonetheless clear that Eppens received it. We know that because the
Summons provided that Eppens must respond within twenty-one days. And, sure
enough, on October 29, 2020 (twenty-one days after October 8, 2020), Eppens filed a
motion to dismiss for lack of service (Doc. 17), and two attorneys from the Hamilton
County Prosecutor’s Office entered appearances on his behalf.
In the motion, Eppens makes three basic arguments. First, he argues that he
was not served within 90 days of the date on which the Complaint was originally
docketed. See Fed. R. Civ. P. 4(m). Second, Eppens contends that service by certified
mail at a work address does not comply with the Federal Rules. Third, and finally,
Eppens argues that service by certified mail does not comply with Ohio rules for
service (the federal rules of civil procedure say a party in federal court can rely on the
rules for service in the state in which the federal court is located, see Fed. R. Civ. P.
4(e)(1)), because serving Eppens at the Hamilton County Justice Center (his place of
work) was not “reasonably calculated … to apprise [him] of the pendency of the
action.” (Doc. 17, #183). That is especially true here, Eppens claims, because there
was no signature on the certified mail receipt, as Ohio service rules require. (Id.). As
support for his arguments regarding service, Eppens also relied extensively on
Beezley v. Hamilton County, 674 F. App’x 502 (6th Cir. 2017), another case involving
attempted service on Hamilton County corrections officers, in which the Sixth Circuit
required technical compliance with service rules.

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In the R&R (Doc. 24) at issue here, the Magistrate Judge recommends denying
(1) Finnell’s Motion for Default Judgment (Doc. 11), and (2) Eppens’ Motion to
Dismiss (Doc. 17). As to the former, the Magistrate Judge notes that at the time
Finnell moved for default, there was no indication that the Eppens even had been
properly served with the Summons and Complaint. Moreover, she notes, Eppens’
Motion to Dismiss means there is no evidence that Eppens has failed to plea or
otherwise defend himself in this action.
As to Eppens’ Motion, she acknowledges that the Complaint was not served
within ninety days of its original docketing, but says that the Order reissuing the
summons and complaint in August 21, 2020, reset that 90-day clock. As for serving
Eppens at his place of work, she indicates that “service has been routinely accepted
by corrections officers for the Hamilton County Sherriff’s Office at this address.” (Doc.
24, R&R, #312). And as for the lack of a signature, she noted that General Order 2039, issued December 29, 2020, as part of the Southern District’s ongoing response to
the COVID-19 pandemic, allowed notations such as “COVID” or “COVID-19” to count
as signatures for purposes of the certified mail return receipt.
Only Eppens objects to the R&R. On the timing front, he claims the clock runs
from original docketing, not reissuance of the summons. As to certified mail, he
argues (1) that federal law does not allow for certified mail service, (2) that Ohio law
allows service by certified mail “only at a defendant’s home address not his
workplace”; (3) that the lack of signature dooms any claim to proper service under
Ohio law; (4) that the General Order regarding signatures on certified mail was

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entered more than two months after the service at issue here, and thus cannot change
that result; (5) that any claim that Hamilton County “routinely accepted service at
the Justice Center” in these types of suits must be “based upon Judicial Notice
because there is nothing in the record establishing it”; and (6) that Eppens’ actual
knowledge of the lawsuit is irrelevant to the service question.
Finnell did not respond.
LEGAL STANDARD
If a party objects within the allotted time to a report and recommendation, the
Court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C); see also Fed R. Civ. P. 72(b)(2)–(3). Upon review, the Court “may
accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge.” 28 U.S.C. § 636(b)(1). Importantly, the Court’s job is not to
conduct a free-wheeling examination of the entire R&R, but only to address any
specific objections that a party has advanced to some identified portion of that R&R.
LAW AND ANALYSIS
As an initial matter, the Court notes that Finnell’s failure to object to the
Magistrate Judge’s R&R means he has forfeited appellate review—including District
Court review—of the Magistrate Judge’s determination that his Motion for Default
Judgment (Doc. 11) should be denied. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn,
474 U.S. 140, 152 (1985); Berkshire v. Beauvais, 928 F.3d 520, 530 (6th Cir. 2019).

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Therefore, the Court ADOPTS that part of the Magistrate Judge’s Report and
Recommendation and DENIES Finnell’s Motion for Default Judgment (Doc. 11).
The Court now turns to Eppens’ Objections. Proper service is undoubtedly
important. “In the absence of ‘proper service of process, content, waiver, or forfeiture,
a court may not exercise personal jurisdiction over a named defendant.’” Boulger v.
Woods, 917 F.3d 471, 476 (6th Cir. 2019) (quoting King v. Taylor, 694 F.3d 650, 655
(6th Cir. 2012)). “And without personal jurisdiction, a federal court is ‘powerless to
proceed to an adjudication.’” Id. (quoting King, 694 F.3d at 655 (quoting Ruhrgas AG
v. Marathon Oil Co., 526 U.S. 574, 584 (1999))). Thus, failure to achieve proper service
at the outset of a case has important implications for a plaintiff down the road, as
any judgment the plaintiff receives would be a nullity.
The Federal Rules of Civil Procedure, and in particular Rule 4, set forth the
manner in which a party may be validly served. To start, there is a time limit. A party
must be served “within 90 days after the complaint is filed.” Fed. R. Civ. P. 4(m). If
that does not occur, the Court has two options: (1) “dismiss the action without
prejudice” against the unserved defendant, or (2) “order that service be made within
a specified time.” Id. And, given that the rule specifically makes the latter option
available after the time for service has passed, courts have held that “[a] district court
may … extend time for service retroactively after the [specified] service period has
expired.” United States v. 2,164 Watches, More or Less Bearing a Registered
Trademark of Guess, Inc., 366 F.3d 767, 772 (9th Cir. 2004) (citing Mann v. Am.
Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003)); see also Small v. Georgia, 446 F. Supp.

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3d 1352, 1358 (S.D. Ga. 2020) (retroactively extending time for service in prisoner
suit against correctional officers).
Beyond the time limit, the Rule also specifies the methods of service. In
particular, the Rule provides that service can be accomplished by: (1) “delivering a
copy of the summons and of the complaint to the individual personally”; (2) “leaving
a copy of each at the individual's dwelling or usual place of abode with someone of
suitable age and discretion who resides there”; or (3) “delivering a copy of each to an
agent authorized by appointment or by law to receive service of process.” Fed. R. Civ.
P. 4(e)(2)(A)–(C). Alternatively, and as more relevant here, service can also be
accomplished by “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.” Fed. R.
Civ. P. 4(e)(1).
Ohio law provides for service by certified mail. Eppens contends that an
individual defendant is subject to such service only at that “defendant’s home
address,” and not the defendant’s work address. (Objection, Doc. 26, #319). But the
Ohio Supreme Court says otherwise. See Akron-Canton Reg’l Airport Auth. v.
Swinehart, 406 N.E.2d 811, 814 (Ohio 1980). “[C]ertified mail service sent to a
business address” is valid service “if the circumstances are such that successful
notification could be reasonably anticipated.” Id.; accord Chuang Dev. LLC v. Raina,
91 N.E.3d 230, 239 (Ohio Ct. App. 2017). That, in turn, means that for such service
to be valid, “the party being served must have such a habitual, continuous or highly
continual and repeated physical presence at the business address that the party

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ordering service of process would have reasonable grounds to calculate that the
service would promptly reach the party being served.” Chuang Dev., 91 N.E.3d at
239–40.
Then there is the separate matter of signature. Under the Ohio rules, service
by certified mail must be “[e]videnced by return receipt signed by any person.” Ohio
Civ. R. 4.1(A)(1)(a). And Ohio case law confirms that “any person” should be
understood broadly. See Indian Creek Condo. Prop. Owners Ass’n. v. Team Equity,
No. 28369, 2019 WL 6341040, at *6 (Ohio Ct. App. Nov. 27, 2019) (“Valid service of
process is presumed when the envelope is received by any person at the defendant’s
residence; the recipient need not be the defendant or an agent of the defendant.”)
(quotation omitted) But, as that quote suggests, it may be that this broad scope
extends only to others residing (or working) at the indicated address, and not
necessarily to mail carriers who deliver the materials to the address—COVID-19
pandemic notwithstanding.
The Southern District likewise addressed the signature issue. On December
29, 2020, the Court issued General Order 20-39, directed at “Service of Process by
Certified Mail During the COVID-19 Pandemic.” Noting the change in USPS
processes regarding signature, the Court ordered that “service of process may be
evidenced by delivery of certified mail … by the USPS as reflected by notations of
‘COVID,’ ‘COVID-19,’ or other similar notations consistent with the USPS’ temporary
modifications to its certified mail procedures.” Id. But, while that order was “effective
immediately,” the Court did not even purport to order retroactive application.

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So, what to make of all of that here? First, even if the service on October 8,
2020, was accomplished by a valid method, it was untimely, or at least arguably so.
As noted, the Complaint was docketed on June 15, 2020, so the time for service
expired 90 days later, on September 13, 2020. To be sure, the Magistrate Judge
reissued the summons in August. Perhaps that could be understood as the Magistrate
Judge implicitly exercising her power under Rule 4(m) to extend the time for service,
but if so, the rule requires that the Court “order that service be made within a
specified time.” The Magistrate Judge did not do so expressly. And, given the
potential consequences down the road if it turns out service was untimely, the Court
is hesitant to conclude that the Magistrate Judge did so implicitly.
Compounding the problem, the Court has significant concerns that the service
was not proper even if it was timely. Certified mail service at the place of work is fine
in this case, as it would be hard to argue that Eppens does not have the necessary
“habitual,” or “continuous” presence at the prison facility to make certified mail
service at his work address appropriate under Ohio law. But the signature issue
presents a problem. The Court is unable to locate any specific Ohio law implementing
a modification to the signature requirement based on COVID-19. Thus, while “any
person” may be broad, the Court cannot be confident that it would extend to a mail
carrier’s signature. As for General Order 20-39, even assuming it could effectively
modify the Ohio signature requirement, it was not in place in October 2020, nor is it
retroactive.

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In short, the Court concludes that Eppens is correct that service on him is not
valid. At least not yet.
But that leaves the separate question of remedy. Eppens wants dismissal
without prejudice. As noted above, though, Rule 4 also provides the Court the option
to extend the time for service, and to do so “on its own.” The Court elects to follow
that path here for multiple reasons. First, it was this Court itself that undertook to
arrange for service. So any shortfalls in the methods used should not act to deprive
Finnell of the opportunity to explore the merits of his claims. Second, the COVID-19
pandemic created such a significant disruption of the judicial system that efforts to
remediate that impact only make sense. Third, at every turn with regard to service
here (and in other cases), the Court has been seeking to ensure fair notice to
defendants, while also minimizing the potential for harm to those in the United
States Marshal’s Service or to the public at large. To the extent that those efforts fell
short, this Court finds that good cause exists to extend the time for compliance.
Accordingly, the Court disagrees with the R&R’s determination that service
here was proper. But the Court nonetheless adopts the R&R’s bottom-line conclusion
that Eppens’ Motion to Dismiss (Doc. 17) should be denied, and the Court further sua
sponte exercises its power under Fed. R. Civ. P. 4(m) to extend the time for service in
this matter until August 31, 2021. Moreover, if service cannot be accomplished by
that time, the Court instructs the Magistrate Judge to extend the time by an
additional three months as necessary.

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The Court also observes that the Magistrate Judge may want to consider
whether Fed. R. Civ. P. 4(d) may make a request for waiver of service possible on the
facts here. After all, an individual “has a duty to avoid unnecessary expenses of
serving the summons.” Fed. R. Civ. P. 4(d)(1). And, if a defendant fails to waive
service without good cause, the court “must impose on the defendant … the expenses
later incurred in making service.” Fed. R. Civ. P. 4(d)(2)(A). That provision may come
into play if Eppens were to refuse waiver of service here.
CONCLUSION
For the above-stated reasons, the Court ADOPTS the R&R’s (Doc. 24)
recommendation to deny both Finnell’s Motion for Default Judgment (Doc. 11) and
Eppens’ Motion to Dismiss (Doc. 17), though the Court disagrees with the R&R to the
extent that it finds that service here was proper. At the same time, the Court sua
sponte EXTENDS the time for service through August 31, 2021. Accordingly, the
Court DENIES Finnell’s Motion for Default Judgment (Doc. 11), DENIES Eppens’
Motion to Dismiss (Doc. 17), and REMANDS the matter to the Magistrate Judge for
further proceedings consistent with this Opinion.
SO ORDERED.
June 4, 2021
DATE

DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE

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