Stansberry v. Pappadeaux

Filing 39

ORDER AND REPORT AND RECOMMENDATIONS - IT IS THEREFORE ORDERED THAT: Plaintiffs motion to verify use of USB sticks Doc. 31 is DENIED AS MOOT. IT IS THEREFORE RECOMMENDED THAT: Defendants' motion to dismiss Doc. 32 be GRANTED and this case b e DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 12(b)(5). (Objections to R&R due by 4/10/2024). Signed by Magistrate Judge Karen L. Litkovitz on 3/27/2024. (kev)(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
BRETT STANSBERRY,
Plaintiff,
v.
PAPPADEAUX,
Defendant.

Case No. 1:22-cv-667
Hopkins, J.
Litkovitz, M.J.
ORDER AND REPORT AND
RECOMMENDATION

This matter is before the Court on defendants’ motion to dismiss for lack of service (Doc.
32). Plaintiff filed a memorandum in opposition (Doc. 36). Plaintiff also filed a motion to verify
USB sticks (Doc. 31).
I. Background
Plaintiff Brett Stansberry initiated this pro se employment discrimination action against
defendant Pappadeaux on November 16, 2022, but plaintiff’s motion to proceed in forma
pauperis was denied. (Doc. 7). On March 13, 2023, plaintiff paid the required filing fee; the
complaint was filed; and summons issued. (Docs. 12, 13, and 14). Noting that plaintiff had
failed to serve process or obtain a service waiver, the Court ordered plaintiff to show cause why
this matter should not be dismissed without prejudice for lack of service. (Doc. 26). The Court
construed plaintiff’s response to the show cause Order as a motion for an extension of time, and
ordered plaintiff to achieve proper service no later than December 3, 2023 “or this action will be
dismissed without prejudice for lack of service.” (Doc. 28 at PAGEID 774).
On November 20, 2023, summons was returned as executed. (Doc. 30). According to
the proof of service, the process server indicated that he served the summons on “Marquise

Smith-Manager, who is designated by law to accept service of process on behalf of . . .
Pappadeaux on . . . Wed, Nov 15, 2023.” (Doc. 30 at PAGEID 779).
On December 6, 2023, defendant appeared for the limited purpose of moving to dismiss
plaintiff’s complaint for insufficient service of process. (Doc. 32 at PAGEID 782, n.1).
According to defendant’s motion, plaintiff’s process server appeared at a Pappadeaux restaurant
in Springdale, Ohio and handed “an unidentified box of documents to a floor manager of a
Pappadeaux restaurant.” (Id. at PAGEID 786). Defendant further states that the employee
“served” is not “an officer, managing or general agent of Pappadeaux, or other agent authorized
by appointment or by law to receive service of process on behalf of Pappadeaux.” (Id.).
Defendant contends that, despite being granted an extension until nearly nine months after
plaintiff filed his complaint, plaintiff has failed to effectuate proper service, and this matter must
be dismissed.
Plaintiff responds that the employee accepted the paperwork “without even the slightest
hint that she wasn’t” allowed to accept service. 1 (Doc. 36 at PAGEID 796). Plaintiff further
argues that the instant motion to dismiss indicates that the paperwork served at the local
restaurant did, in fact, reach the corporate office in Texas and should be accepted as proper
service. (Id. at PAGEID 799-800).
II. Defendants’ Motion to Dismiss Should be Granted
A. Plaintiff has not perfected service on defendant.
Federal Rule of Civil Procedure 12(b)(5) permits a defendant to move for dismissal for
“insufficient service of process.” Unless plaintiff is authorized to proceed in forma pauperis
under 28 U.S.C. § 1915, “plaintiff is responsible for having the summons and complaint served
Based on the parties’ inconsistent use of pronouns, the gender of the employee served is unclear. Therefore, the
Court will use “they” in referring to that employee.

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within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who
makes service.” Fed. R. Civ. P. 4(c)(1).
Proper service of process is required in order for this Court to obtain personal jurisdiction
over a defendant. Canaday v. Anthem Cos., 9 F.4th 392, 395 (6th Cir. 2021). Actual knowledge
of a lawsuit is not a substitute for proper service of process. Lu v. SAP America, Inc., No. 221253, 2022 WL 13983546, at *5 (6th Cir. Oct. 24, 2022); LSJ Inv. Co. v. O.L.D., Inc., 167 F.3d
320, 322 (6th Cir. 1999). “The fact that [defendant corporation] might have been aware of
[plaintiff’s] suit against it ‘makes no legal difference to the question [of] whether [it] was
properly served.’” Lu, 2022 WL 13983546, at *5 (quoting King v. Taylor, 694 F.3d 650, 655-56
(6th Cir. 2012)). On the other hand, “[t]he rules governing service of process are not designed to
create an obstacle course for the plaintiffs to navigate, or a cat-and-mouse game for defendants
who are otherwise subject to the court’s jurisdiction.” Boulger v. Woods, 306 F. Supp. 3d 985,
994 (S.D. Ohio 2018) (quoting TRW, Inc. v. Derbyshire, 157 F.R.D. 59, 60 (D. Colo. 1994)).
Unless a plaintiff obtains a waiver of service pursuant to Fed. R. Civ. P. 4(d), a domestic
corporation must be served either 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 or where
service is made” or “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 . . . .” Fed. R. Civ. P. 4(h)(1) and 4(e)(1). Ohio law also authorizes service by
United States certified or express mail or commercial carrier service “at any of its usual places of
business” as “[e]videnced by return receipt.” Ohio R. Civ. P. 4.2(F) and 4.1(A)(1).
In this case, plaintiff has failed to effectuate proper service on defendant. Plaintiff
attempted to serve the manager on duty at a local Pappadeaux restaurant. Defendant represents

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to the Court that the person served is not an officer, managing or general agent, or authorized
agent of defendant corporation. (Doc. 32 at PAGEID 786-87). Plaintiff has failed to offer any
evidence to the contrary. In addition, plaintiff did not arrange for service by certified mail or
commercial carrier service, and has not provided the required return receipt indicating that such
service has been made.
Rather than providing evidence of service (e.g., a signed certified mail receipt), plaintiff
relies on “video evidence” and the fact that the person served did not inform the process server
that they were not authorized to receive service of process. (Doc. 36 at PAGEID 797-800).
Plaintiff further argues that the documents served must have reached the Texas corporate
headquarters because counsel has appeared in this matter for the limited purpose of moving to
dismiss the case for improper service. (Id. at PAGEID 799-800). However, “plaintiff ‘bears the
burden of perfecting service of process and showing that proper service was made.’” Cottrell v.
DeVillers, No. 2:20-cv-5354, 2022 WL 2340884, at *2 (S.D. Ohio June 29, 2022) (Marbley,
C.J.) (quoting Sawyer v. Lexington-Fayette Urban Cty. Gov’t, 18 F. App’x 285, 287 (6th Cir.
2001)). In addition, “[a]ctual knowledge of a lawsuit does not substitute for proper service under
Fed. R. Civ. P. 4.” Id. at *9 (quoting Bridgeport Music, Inc. v. Rhyme Syndicate Music, 376 F.3d
615, 623 (6th Cir. 2004)).
As for video evidence, plaintiff has filed two thumb drives in this case since defendant
moved to dismiss for improper service. (Docs. 37, 38). Each thumb drive contains hundreds of
videos varying in length from a few minutes to over an hour. Plaintiff failed to identify any
particular video that would establish proper service in this case, but the Court, in an effort to
ensure fundamental fairness to plaintiff, viewed a wide selection of the videos submitted. The
videos appear to document plaintiff’s daily activities and are irrelevant to service of process in

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this case. Accordingly, plaintiff has failed to carry his burden of demonstrating proper service
has been made.
B. Plaintiff has not established good cause for failing to serve defendant.
Having determined that plaintiff has not perfected service, the issue becomes whether this
matter should be dismissed. On this issue, Rule 4 provides:
If a defendant is not served within 90 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.
Fed. R. Civ. P. 4(m).
Plaintiff bears the burden to establish good cause for his failure to timely serve the
summons and complaint on a defendant. Habib v. General Motors Corp., 15 F.3d 72, 73 (6th
Cir. 1994). See also Byrd v. Stone, 94 F.3d 217 (6th Cir. 1996). “‘[L]ack of prejudice and actual
notice are insufficient’ to establish good cause, as are ‘mistake of counsel or ignorance of the
rules.’” Thul v. Haaland, No. 22-5440, 2023 WL 6470733, at *2 (6th Cir. Mar. 1, 2023)
(quoting Johnson v. Smith, 835 F. App’x 114, 115 (6th Cir. 2021) (cleaned up)). The Sixth
Circuit has “identified three scenarios constituting good cause under Rule 4(m): (1) when the
defendant has intentionally evaded service; (2) when the district court has committed an error;
and (3) when a pro se plaintiff suffers from a serious illness. . . . The common denominator in
these situations ‘is that something outside the plaintiff’s control prevents timely service.’” Id.
(quoting Savoie v. City of East Lansing, No. 21-2684, 2022 WL 3643339, at *4 (6th Cir. Aug.
24, 2022)).
In this case, plaintiff has not established good cause. The complaint was filed on March
13, 2023, and summons issued the same day. (Docs. 13, 14). Approximately six months later,

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the Court ordered plaintiff to show cause why the complaint should not be dismissed without
prejudice for failure to timely serve defendant. (Doc. 26). In response, plaintiff stated that he
“served papers to Papadeaux on separate times” but he was told that his mother needed to sign
“paperwork” that she is concerned about signing. (Doc. 27 at PAGEID 771). He concluded his
one-page response by stating, “I can deliver a 3rd time, but really shouldn’t have to.” Id. The
Court construed plaintiff’s response as a motion for extension of time to perfect service pursuant
to Federal Rule of Civil Procedure 4(m), and granted him an extension of time. The Order
specifically stated that “[p]laintiff must achieve proper service of process no later than
December 3, 2023, or this action will be dismissed without prejudice for lack of service.” (Doc.
28 at PAGEID 774). Plaintiff has offered no evidence that he suffers from a serious illness or
that defendant intentionally evaded service. In addition, he has identified nothing outside of his
control that precluded him from perfecting service during the original 90-day window or in the
nine months that have followed.
C. Another discretionary extension is not warranted.
Where a plaintiff has failed to effectuate proper service and has failed to establish good
cause for failing to do so, the Court may either dismiss the matter without prejudice or order that
service be accomplished within a certain time. United States v. Oakland Physicians Med. Ctr.,
LLC, 44 F.4th 565 (6th Cir. 2022); Shehee v. Kings Furniture, No. 3:21-cv-274, 2022 WL
4481465 (S.D. Ohio Sept. 27, 2022); Fed. R. Civ. P. 4(m). In determining whether to grant a
discretionary extension of time where no showing of good cause has been made, courts should
consider the following factors:
(1) whether an extension of time would be well beyond the timely service of
process; (2) whether an extension of time would prejudice the defendant other than
the inherent prejudice in having to defend the suit; (3) whether the defendant had
actual notice of the lawsuit; (4) whether the court’s refusal to extend time for
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service substantially prejudices the plaintiff, i.e., would the plaintiff’s lawsuit be
time-barred; (5) whether the plaintiff had made any good faith efforts to effect
proper service of process or was diligent in correcting any deficiencies; (6) whether
the plaintiff is a pro se litigant deserving of additional latitude to correct defects in
service of process; and (7) whether any equitable factors exist that might be relevant
to the unique circumstances of the case.
Oakland Physicians Med. Ctr., 44 F.4th at 569. “So long as the court ‘clearly weighed, on the
record, the impact that a dismissal or an extension would have on the parties before ordering a
dismissal,’ the court does not abuse its discretion.” Id. at 570 (quoting Harmon v. Bogart, 788 F.
App’x 808, 810 (2d Cir. 2019)).
Evaluation of the enumerated factors indicates that another discretionary extension is not
warranted. First, the Court previously granted a discretionary extension of time, yet plaintiff
failed to perfect service. (Doc. 28). More than a year has now elapsed since plaintiff’s
complaint was filed, well beyond the 90-day period contemplated by Rule 4(m). Second,
although defendant received actual notice and has not demonstrated undue prejudice if another
extension were granted, the Court previously warned plaintiff that if he failed to perfect service
by December 3, 2023, “this action will be dismissed without prejudice for lack of service.”
(Doc. 28 at PAGEID 774). Despite knowing the case would be dismissed if he failed to perfect
service, plaintiff has not been diligent in correcting the deficiencies previously identified.
Plaintiff has made some efforts at service, but he blames his mother’s refusal to sign unidentified
paperwork (Doc. 36 at PAGEID 796), the “deceitful Marshals” (Id. at PAGEID 797),
defendant’s counsel (Id. at PGEID 798), the employee to whom the process server handed the
documents (Id. at PAGEID 798-99), and defendant (for failing to provide a “call and/or emails
detailing a list of people that could receive my service”) (Id. at PAGEID 800) for plaintiff’s own
lack of diligence. Fourth, the Court recognizes that plaintiff is proceeding pro se, but another
extension would likely prove futile. Plaintiff attached to his long-ago filed complaint a
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document that lists the name and address of defendant’s corporate headquarters at the top of
every page. (Doc. 13-1 at PAGEID 399-402). Plaintiff has had a year in which to request a
service waiver, conduct an internet search for the proper person to receive service, or serve
defendant by certified mail, yet he took none of those actions. The Court is mindful that
dismissal without prejudice may create statute of limitations concerns for plaintiff (who states
that he received his right to sue letter on September 1, 2022). (Doc. 13 at PAGEID 391).
However, the equities of this case do not support a second discretionary extension of time at this
late date.
III. Plaintiff’s Motion to Verify Use of USB Sticks (Doc. 31) Will be Denied as Moot
Plaintiff filed a one paragraph motion containing multiple case numbers, including the
number of this case. (Doc. 31). In it, plaintiff seeks to verify that USB sticks (more commonly
called “thumb drives”) are an acceptable medium for evidence submission to the Court. As the
Court is recommending that this matter be dismissed without prejudice for lack of proper service,
plaintiff’s motion is moot. However, the Court notes that thumb drives are commonly used to
submit evidence to the United States District Court for the Southern District of Ohio. It appears
from plaintiff’s motion that he may have had a telephone conversation with someone in the
Office of the Circuit Executive for the Sixth Circuit Court of Appeals. The undersigned makes
no statement regarding whether the Sixth Circuit accepts thumb drives from pro se litigants.

IT IS THEREFORE ORDERED THAT:
Plaintiff’s motion to verify use of USB sticks (Doc. 31) is DENIED AS MOOT.

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IT IS THEREFORE RECOMMENDED THAT:
Defendants’ motion to dismiss (Doc. 32) be GRANTED and this case be DISMISSED
WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 12(b)(5).

3/27/2024
Date: __________________

_______________________
Karen L. Litkovitz
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BRETT STANSBERRY,
Plaintiff,

Case No. 1:22-cv-667
Hopkins, J.
Litkovitz, M.J.

vs.
PAPPADEAUX,
Defendant.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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