Enyart v. Karnes et al

Filing 165

REPORT AND RECOMMENDATION that 135 MOTION to Dismiss for Failure of Service of Process filed by Deputy Dan Waldren be DENIED. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Norah McCann King on 7/16/2012. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

RICHARD E. ENYART, JR.,
Plaintiff,
vs.

Civil Action 2:09-CV-687
Judge Smith
Magistrate Judge King

SHERIFF JIM KARNES, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, a state inmate proceeding without the assistance of
counsel, brings this action under 42 U.S.C. § 1983, alleging that he
was denied due process while detained in the Franklin County Jail.
This matter is now before the Court on Defendant Daniel Waldren’s
Motion to Dismiss for Failure of Service of Process, Doc. No. 135
(“Defendant Waldren’s Motion”).

For the reasons that follow, it is

RECOMMENDED that Defendant Waldren’s Motion be DENIED.
I.

BACKGROUND
Plaintiff initiated this action on August 6, 2009, by the filing

of the original Complaint that named as defendants Sheriff Jim Karnes1
and two “John Does.”

Complaint, Doc. No. 2.

Thereafter, plaintiff

moved for leave to amend in order to identify two new defendants,
including Deputy Daniel Waldren whom plaintiff intended to name as the
“John Doe 1” referred to in the Complaint.

Doc. No. 10.

Plaintiff

did not tender the proposed amended complaint asserting claims against

1

Sheriff Jim Karnes is now deceased.

defendant Waldren; however, his motion for leave to amend specifically
stated that plaintiff intended that paragraphs in the original
Complaint relating to defendant “John Doe 1" be asserted against
defendant Waldren.

Id.

Because no answer had yet been filed,

plaintiff’s motion was granted.

Order, Doc. No. 13.

In granting that

motion, the Court directed plaintiff to “provide a copy of the
complaint, a summons and a Marshal service form for each of the two
new defendants” for purposes of effecting service of process.

Id.

Plaintiff did so, and the docket reflects that service of those papers
on defendant Waldren was completed on March 31, 2010.

Summons

Returned Executed, Doc. No. 41. No response to the original complaint
was filed by this defendant, however.
Plaintiff filed yet additional motions for leave to amend and
sought leave to join additional parties.

However, those motions were

not accompanied by a proposed amended complaint. Recognizing the
ambiguity in the record, the Court, on November 10, 2010, ordered
plaintiff to file a new amended complaint that expressly identified,
inter alios, Deputy Waldren as a defendant.
Recommendation, Doc. No. 69.

Order and Report and

The Court also ordered plaintiff to

submit service papers for all defendants except defendant Karnes and
directed the United States Marshal Service to effect service of
process upon plaintiff’s submission of those documents.

Id.

Thereafter, plaintiff filed the Amended Complaint, Doc. No. 76,
and submitted, inter alia, a completed summons directed to defendant
Waldren at the Franklin County Corrections Center I (“FCCCI”) at 370
South Front Street in Columbus.

Doc. No. 74.

On February 25, 2011,

the summons was returned unexecuted with the notation that service was
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“[r]efused” when attempted on February 16, 2011.

Summons Returned

Unexecuted, Doc. No. 87, p. 3.
On April 26, 2011, the undersigned commented that defendant
Waldren and certain other named defendants had not yet been served
with process and recommended, inter alia, that plaintiff’s motion for
entry of default therefore be denied. Order and Report and
Recommendation, Doc. No. 96. Plaintiff did not object to that
particular recommendation2 and his motion for entry of default was
denied.

Opinion and Order, Doc. No. 112.

The Order and Report and Recommendation, Doc. No. 96, also
directed the Clerk’s Office to effect service of process on defendant
Waldren by ordinary mail consistent with S.D. Ohio Civ. R. 4.2(c).3 On
April 27, 2011, the Clerk certified that a copy of the Amended
Complaint had been sent by regular mail to defendant Waldren at FCCCI.

2
Plaintiff did, however, object to the recommendation that Franklin
County be dismissed as a defendant and to various orders issued by the
undersigned.
3

S.D. Ohio Civ. R. 4.2(c) provides:

If service of process is refused or was unclaimed, the Clerk shall
forthwith notify, by mail, the attorney of record or if there is
no attorney of record, the party at whose instance process was
issued. If the attorney, or serving party, after notification,
files with the Clerk a request for ordinary mail service,
accompanied by an envelope containing the summons and complaint or
other document to be served, with adequate postage affixed to the
envelope, the Clerk shall send the envelope to the defendant at
the address set forth in the caption of the complaint, or at the
address set forth in instructions to the Clerk. The attorney or
party at whose instance the mailing is sent shall also prepare for
the Clerk's use a certificate of mailing which shall be signed by
the Clerk or a Deputy Clerk and filed at the time of mailing. The
attorney or party at whose instance the mailing is sent shall also
endorse the answer day (twenty-one (21) days after the date of
mailing shown on the certificate of mailing) on the summons sent
by ordinary mail. If the ordinary mail is returned undelivered,
the Clerk shall forthwith notify the attorney or serving party,
electronically or by mail.

3

Certificate of Mailing by Clerk, Doc. No. 97.
On July 7, 2011, defendant Waldren filed a motion to dismiss for
insufficiency of service of process pursuant to Fed. R. Civ. P.
12(b)(5).

Defendant Daniel Waldren’s Motion to Dismiss for Failure of

Service of Process, Doc. No. 116.

In support of that motion,

defendant Waldren attached the affidavit of Major Stephanie Klumpp who
averred that defendant Waldren “was not at 370 S. High Street” on
February 16, 2011, i.e., the day that service of process based on the
Amended Complaint was attempted, and that defendant Waldren therefore
did not “refuse” that service.
No. 116.

Exhibit A, ¶¶ 4-5, attached to Doc.

The Court, noting that the summons had been addressed to

defendant Waldren at “370 S. Front Street” and not 370 S. High Street,
denied the motion to dismiss without prejudice to renewal.

Opinion

and Order, Doc. No. 152.
Later, Defendant Waldren’s Motion was filed, attaching as Exhibit
A the Affidavit of Major Stephanie Klumpp (“Klumpp Affidavit”).
Although plaintiff responded to Defendant Waldren’s Motion, see Doc.
No. 155, the Court, in an excess of caution,4 advised the parties of
its intent to treat the motion as one for summary judgment under Fed.
R. Civ. P. 56 and gave the parties the opportunity to further address

4
Motions to dismiss under Fed. R. Civ. P. 12(b)(5) that attach
affidavits need not be treated as ones for summary judgment. See, e.g.,
Metro. Alloys Corp. v. State Metals Indus., Inc., 416 F. Supp. 2d 561, 563
(E.D. Mich. 2006) ("Facts as attested to in uncontroverted affidavits may be
considered in ruling on a motion to dismiss under Rule 12(b)(5)."); 5A CHARLES
ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1366 (2d ed.)
(stating that the rule converting motions to dismiss into motions for summary
judgment applies only to Rule 12(b)(6) motions because “[t]here never has been
any serious doubt as to the availability of extra-pleading material” as to
motions under Rules 12(b)(1) through 12(b)(5) and 12(b)(7), because motions
under those rules “only challenge the propriety of the court adjudicating the
claim before it and do not reach the validity of the claim itself”).

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the issue.

Order, Doc. No. 159, pp. 1-2

On June 6, 2012, Plaintiff’s Supplement [sic] Response to the
Motion to Dismiss That Was Converted to a Motion for Summary Judgment,
Doc. No. 161 (“Plaintiff’s Supplemental Response”), was filed.
Because defendant Waldren did not file a supplemental reply, this
matter is now ripe for resolution.5

II.

DISCUSSION
Defendant Waldren contends that the Court should dismiss the

claims asserted against him because of failure of service of process.
Rule 4(c) of the Federal Rules of Civil Procedure requires that a
plaintiff serve a defendant with a summons and a copy of the complaint
in timely fashion.

Fed. R. Civ. P. 4(c)(1).

See also Fed. R. Civ.

P. 4(m)(each defendant must ordinarily be served with process within
120 days of the filing of the complaint).

“Due process requires

proper service of process for a court to have jurisdiction to
adjudicate the rights of the parties.”

O.J. Distrib., Inc. v. Hornell

Brewing Co., Inc., 340 F.3d 345, 353 (6th Cir. 2003).

The plaintiff

“bears the burden of perfecting service of process and showing that
proper service was made.”

Sawyer v. Lexington-Fayette Urban County

Gov’t, No. 00-6097, 18 Fed. Appx. 285, at *287 (6th Cir. Aug. 21,
2001)(citing Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996).
Attached to Defendant Waldren’s Motion is the revised Klumpp
Affidavit.

Major Klumpp worked at the Franklin County Sheriff’s

5

Because the Court concludes that Defendant Waldren’s Motion is without
merit, the Court need not address plaintiff’s objection to the Court’s
briefing schedule or argument that he requires discovery in order to respond
to Defendant Waldren’s Motion.

5

office during the relevant time frame and was aware of defendant
Waldren’s work schedule.

Id. at ¶¶ 2-3.

She avers that her earlier

affidavit “mistakenly identified the work address of Deputy Waldren,
specifically the Franklin County Jail, as ‘370 S. High Street.’

The

correct address for the Franklin County Jail is 370 S. Front Street.”
Id. at ¶ 4.

Major Klumpp also avers that “Deputy Waldren was not at

370 S. Front Street on February 16, 2011 as the day was one of his
regularly scheduled days off” and therefore, to her knowledge,
defendant Waldren did not “refuse” the service of process attempted on
that date.

Id. at ¶¶ 5-6.

Major Klumpp further avers that defendant

Waldren’s last day of employment with the Sheriff’s Office was April
13, 2011, and that he thereafter embarked on a two year tour of duty
with the United States military.

According to Major Klumpp, defendant

Waldren was deployed to Afghanistan on or about April 14, 2011 – i.e.,
prior to the ordinary mail service on April 27, 2011. Id. at ¶ 7.
Based on this evidence, defendant Waldren argues that plaintiff’s
claims against him must be dismissed for insufficiency of service of
process.
However, service of process based on the original Complaint, and
made in conformity with the Court’s directive, see Doc. No. 13, was
executed on defendant Waldren on March 31, 2010.
Executed, Doc. No. 41.

Summons Returned

Under these circumstances, the Court concludes

that dismissal of this defendant for claimed insufficiency of service
of process is unwarranted.
The Court recognizes that this conclusion is inconsistent with
the earlier denial of plaintiff’s motion for entry of defendant
Waldren’s default. See Opinion and Order, Doc. No. 112.
6

However, that

decision (and the recommendation upon which it was based) overlooked
the fact that the March 31, 2010 service of process was effected in
apparent conformity with the express directive of the Court contained
in Doc. No. 13.

However, the Court does not recommend, as requested

by plaintiff in Plaintiff’s Supplemental Response, p. 5, the entry of
defendant Waldren’s default, nor does the Court recommend
reconsideration of the denial of plaintiff’s earlier motion for entry
of default.

The ambiguous and confused state of the docket – caused

in no small part by plaintiff’s numerous motions to amend and failures
to provide amended pleadings that explicitly set forth the allegations
against each of the named defendants – militates against the entry of
default.

See United Coin Meter Co., Inc. v. Seaboard Coastline RR.,

705 F.2d 839, 846 (6th Cir. 1983)(“Trials on the merits are favored in
federal courts. . .”).

In any event, the Servicemembers Civil Relief

Act offers to members of the military certain protections against
default judgment.

50 U.S.C. App. § 521.6

WHEREUPON, it is RECOMMENDED that Defendant Dan Waldren’s Motion
to Dismiss for Failure of Service of Process, Doc. No. 135, be DENIED.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part

6

Plaintiff’s Supplemental Response also requests that summary judgment
in his favor be entered against defendant Waldren. In addition to the fact
that plaintiff has not actually filed a motion for summary judgment, the
Servicemembers Civil Relief Act also authorizes a stay of proceedings against
a service member under certain circumstances. 50 U.S.C. App. § 522.

7

thereof in question, as well as the basis for objection thereto.
U.S.C. §636(b)(1); F.R. Civ. P. 72(b).

28

Response to objections must be

filed within fourteen (14) days after being served with a copy
thereof.

F.R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation
of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United
States v. Walters,

July 16, 2012

638 F.2d 947 (6th Cir. 1981).

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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