Roundtree-Chism v. Dunn et al (TV3)
MEMORANDUM AND ORDER finding as moot 17 18 [ 36 39 40 43 50 52 ; granting 10 20 Motion to Dismiss for Failure to State a Claim and for lack of jurisdiction; denying 15 25 Plaintiff's Motion to dismiss. DISMISSES the action filed by Plaintiff for lack of personal jurisdiction as to each named Defendant and for failure to effect sufficient service of process with regard to Defendants Koontz and Dr. Oldfield. The Court need not address the other grounds for di smissal raised by the named Defendants. The Court DISMISSES AS MOOT all other pending motions in this action and DIRECTS the Clerk to CLOSE this case.Signed by Magistrate Judge Susan K Lee on 5/26/2017. (SAC, )Order mailed to Roundtree-Chism.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
STUART H. DUNN, WARREN W.
KOONTZ, JEAN BARON, DR. OAKFIELD, )
MEMORANDUM AND ORDER
Pending before the Court are motions to dismiss filed by Defendant Stuart H. Dunn
(“Dunn”) [Doc. 10] and Defendant Jean Baron (“Baron”) [Doc. 20] and various motions filed by
Plaintiff Silverrene Roundtree-Chism (“Plaintiff”) [E.g., Docs. 15, 17, 18, 25, 36, 39, 40, 43, 45,
46, 50 and 52].
Upon consideration of the pleadings, motions to dismiss, and Plaintiff’s
responses to the motions, the Court issued a Show Cause Order to allow Plaintiff an opportunity
to correct certain deficiencies and to address the issue of personal jurisdiction as to all defendants
and insufficient service of process on two of the four defendants [Doc. 44]. The motions to
dismiss are now ripe.
After careful review and considering the pleadings and affidavits in a light most
favorable to Plaintiff, the Court finds Plaintiff’s responses to the motions and to the Show Cause
Order do not make out a prima facie case that the Court has personal jurisdiction over any
Defendant. For the reasons set forth in detail below, the Court concludes that it lacks personal
jurisdiction over all defendants and that Plaintiff failed to effect service of process with regard to
two of the four defendants. Accordingly, the Court will GRANT the motions to dismiss [Docs.
10 & 20] and will DENY Plaintiff’s motions to deny certain motions to dismiss [Docs. 15, 25].
As a result, Plaintiff’s several other motions [Docs. 17, 18, 36, 39, 40, 43, 50, and 52] will be
TERMINATED AS MOOT.
Plaintiff filed a complaint in September 2016 against Dunn, Warren W. Koontz
(“Koontz”), Baron, and Dr. Oakfield1 (collectively “Defendants”)2 [Doc. 2]. Therein Plaintiff
implies that she worked as a physician some two decades in the past and alleges certain
misconduct with regard to a medical board hearing that took place approximately twenty (20)
years ago [id. at Page ID # 11-12]. Plaintiff now brings this action, stating that she recently
learned information about that hearing and that she suffered damages as a result of the alleged
misconduct that occurred in relation to the same [id. at Page ID #12]. Specifically, Plaintiff
alleges in her complaint that certain evidence was fabricated, that she was denied an opportunity
to face her accusers in person or at all, that she failed to receive adequate counsel, and that
medical records and a prescription were forged using Plaintiff’s name [id.].
Plaintiff did not provide the first name of “Dr. Oakfield” in her complaint.
The Court clarified in its Show Cause Order that Marta J. Ishamel (“Ishmel”) was not a party to
the current action [Doc. 44 at Page ID # 230, n.4]. Prior to the entry of that Order, Plaintiff had
filed with this Court an acknowledgement of service executed upon Ishamel, though Ishmel was
not listed as a defendant in Plaintiff’s original complaint and at that time no amended complaint
had been filed.
Plaintiff filed an amendment to her original complaint [Doc. 50] on May 15, 2017, in
which she sought to add two defendants – “The Medical Board of Virginia that was operating in
1998” (emphasis in original omitted) and “Karen Perrine, the Deputy Executive Director of the
Virginia Medical Board in 1998.” At minimum, Plaintiff failed to adhere to the procedural
requirements to amend her complaint set forth in Federal Rule of Civil Procedure 15 or E.D.
Local Rule 15.1 and declined to establish or even address whether this Court has jurisdiction
over the individual and entity she sought to add as defendants. For these reasons and also in
light of this Court’s decision to terminate the underlying action by entry of this Order, the Court
CLARIFIES that neither “The Medical Board of Virginia that was operating in 1998,” nor
Karen Perrine are a party to this action.
Dunn and Baron each filed a motion to dismiss [Docs. 10, 20]. Dunn moved to dismiss
Plaintiff’s complaint [Doc. 10] for lack of subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1), lack of personal jurisdiction under Rule 12(b)(2), failure to state a claim on
which relief can be granted under Rule 12(b)(6), insufficient process under Rule 12(b)(4) and
Rule 4(a), and expiration of the applicable statute of limitations. Separately, Baron moved for
summary judgment pursuant to Rule 56 and to dismiss Plaintiff’s case on those same grounds, as
well as insufficient service of process under Rule 12(b)(5) [Doc. 20].
In an abundance of caution given Plaintiff’s pro se status, the Court entered a Show
Cause Order on April 13, 2017 [Doc. 44], requiring Plaintiff to “show cause in writing supported
by proper affidavit or declaration within thirty (30) days of the entry of this order why this case
should not be dismissed (1) for lack of personal jurisdiction with regard to all Defendants; and
(2) for failure to effect proper service of process with regard to Koontz and Oakfield.” [Doc. 44
at Page ID # 232-33] (capitalization and bold font in original omitted). The same Order
specifically notified Plaintiff that “any failure to adequately respond to this Order will result in
the dismissal of her complaint.” [Doc. 44 at Page ID # 233]. Despite the Court’s Order, Plaintiff
did not file a supporting affidavit or declaration. Further, Plaintiff failed to file a writing that
adequately addressed the issues of personal jurisdiction or insufficient service of process.3
LACK OF PERSONAL JURISDICTION PURSUANT TO RULE 12(B)(2)
A Rule 12(b)(2) motion to dismiss requires a court to “determine whether the plaintiff has
alleged sufficient facts to support the exercise of personal jurisdiction over the defendants.”
In one response [Doc. 45], Plaintiff described unsuccessful efforts to serve process on Dr.
Warren W. Koontz and “Edward C. Oldfield 111, MD” and clarified the spelling of Dunn’s first
name, in response to a portion of the Court’s prior Order [Doc. 44 at Page ID # 230, n.1]. In her
other response, Plaintiff attempted to establish Dunn’s contacts with the forum state, but at no
point in her responses did Plaintiff attempt to establish a relationship between Tennessee and the
Destination Designs, LLC v. Glick, No. 3:08-CV-197, 2008 WL 4559815, at *2 (E.D. Tenn. Oct.
9, 2008). In doing so, the court has “has three procedural alternatives: (1) the court may
determine the motion on the basis of written submissions and affidavits alone; (2) it may permit
discovery in aid of the motion; or (3) it may conduct an evidentiary hearing on the merits of the
motion.” Id. (citing Serras v. First Tenn. Bank Nat’l Ass’n, 875 F.3d 1212, 1214 (6th Cir. 1989)).
Should the court rule on the motion without conducting an evidentiary hearing, “the plaintiff
need only make a ‘prima facie’ case that the court has personal jurisdiction,” Conn v. Zakharov,
667 F.3d 705, 711 (6th Cir. 2012) (citing Kroger Co. v. Malease Foods Corp., 437 F.3d 506, 510
(6th Cir. 2006)), and “the court must consider the pleadings and affidavits in a light most
favorable to the plaintiff,” CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996);
see also Jude v. First Nat’l Bank of Williamson, 259 F. Supp. 2d 586, 589 (E.D. Ky. 2003). “[I]n
the face of a properly supported motion for dismissal, the plaintiff may not stand on his pleading
but must, by affidavit or otherwise, set forth specific facts showing that the court has
jurisdiction.” Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 449 (quoting Theunissen v.
Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991)) (internal quotation marks omitted); see also
Lexon Ins. Co. v. Devinshire Land Dev., LLC, 573 F. App’x 427, 429 (6th Cir. 2014) (holding
that a plaintiff can meet his prima facie showing that jurisdiction exists “by establishing with
reasonable particularity sufficient contacts between [the defendant] and the forum state to
support jurisdiction”) (citation and internal quotation marks omitted).
“A federal court has personal jurisdiction over a defendant if the defendant is amenable to
service of process under the forum state’s long-arm statute and if the exercise of personal
jurisdiction would not deny the defendant due process.” Feild v. Graffagnino, 514 F. Supp. 2d
1036, 1040 (W.D. Tenn. 2007) (citing Mich. Coal. of Radioactive Material Users, Inc. v.
Griepentrog, 954 F.2d 1174, 1176 (6th Cir. 1992)). Tennessee’s long-arm statute, Tenn. Code
Ann. § 20-2-214, “extends the personal jurisdiction of Tennessee courts to the full limit allowed
by due process under the United States Constitution.” Id. (citing Bridgeport Music, Inc. v. Still N
The Water Publ’g, 327 F.3d 472, 477 (6th Cir. 2003)).
Personal jurisdiction over a non-resident defendant may be either general or specific.
Destination Designs, 2008 WL 4559815, at *3 (citing Conti v. Pneumatic Prods. Corp., 977 F.2d
978, 981 (6th Cir. 1992)). General jurisdiction requires “the [d]efendant’s contacts with the
forum state” are “continuous and systematic . . . sufficient to justify the state’s exercise of
judicial power with respect to any and all claims.” Field, 514 F. Supp. 2d at 1041 (quoting Kerry
Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 149 (6th Cir. 1997)). “Due process requires
that an out-of-state defendant can be subject to personal jurisdiction only if he has such
minimum contacts with the forum state that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice.” Chenault v. Walker, 36 S.W.3d 45, 53
(Tenn. 2001) (citations omitted).
In the absence of general jurisdiction, specific personal jurisdiction may be found when a
defendant purposely directs his activities toward citizens of the forum state and litigation results
from injuries arising out of or relating to those activities. Field, 514 F. Supp. 2d at 1041; Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985). In such cases, “the defendant’s conduct and
connection with the forum state are such that he should reasonably anticipate being haled into
court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). The Sixth
Circuit utilizes a three-part test to determine whether personal jurisdiction would violate the
requirements of the due process clause. S. Mach. Co. v. Mohasco Indus. Inc., 401 F.2d 374, 381
(6th Cir. 1968).
First, the defendant must purposefully avail himself of the
privilege of acting in the forum state or causing a consequence in
the forum state. Second, the cause of action must arise from the
defendant's activities there. Finally, the acts of the defendant or
consequences caused by the defendant must have a substantial
enough connection with the forum state to make the exercise of
jurisdiction over the defendant reasonable.
As noted above, Plaintiff failed to submit an affidavit or declaration, though she was
obligated to do so in the Show Cause Order [Doc. 44 at Page ID # 232]. The only connection to
Tennessee expressed in her complaint is her own residence [Doc. 2 at Page ID # 11]. Plaintiff’s
allegations contained therein describe discrimination that she says occurred at the Maryland
Medical Board, and she seeks a judgment related, in part, to the Medical Board of Virginia [id. at
Page ID # 11-12]. Though Plaintiff alleges in a response to Dunn’s motion to dismiss that “it is
extremely hard to obtain commissions [for her sculpture work] because of the blackballing from
the Medical Board of Virginia” [Doc. 15 at Page ID #72] and that “blackballing over the United
States” continues [Doc. 2 at Page ID # 12], she failed to establish specific facts demonstrating
the connection between the alleged blackballing and the forum state.
A. Personal Jurisdiction over Defendant Stuart Dunn
Dunn moves to dismiss the case against him, in part for lack of personal jurisdiction. He
maintains he lacks “sufficient minimum contacts with Tennessee” and that “[he] has never
purposefully availed himself of the privilege of conducting business in Tennessee.” [Doc. 10 at
Page ID # 33]. In a declaration filed pursuant to 28 U.S.C. § 1746, Dunn states he is an attorney
licensed to practice in the Commonwealth of Virginia, but is not and has never been a licensed
attorney in Tennessee and has never practiced law in Tennessee [Doc. 10-1 at Page ID # 49].
Further his “representation of [Plaintiff] occurred only in the state of Virginia” and he “did not
travel to the state of Tennessee for any reason related to the representation of [Plaintiff]” [id. at
Page ID # 50] (emphasis in original). He represented Plaintiff most recently some 15 years ago
in 2002, when the letters he mailed to Plaintiff, then at an address in Maryland, were returned
undelivered. [Doc. 10-1 at Page ID # 50]. Dunn stated he did not communicate with Plaintiff
again until 2016, at which point he discovered her phone number on the Internet [id.]. He spoke
with her and “with her agreement . . . mailed her client file and the remaining money from her
client trust account, minus the amount paid for the mailing fees.” [Id.]
Dunn argues that his act of mailing Plaintiff’s file to her in Tennessee “fourteen years
after their attorney-client relationship ended, does not constitute sufficient minimum contacts
with Tennessee for the establishment of personal jurisdiction within the confines of Due
Process[.]” [Doc. 10 at Page ID # 33]. He argues he lacks “sufficient continuous and systematic
contacts with Tennessee to justify [the] assertion of general jurisdiction.” [id. at Page ID # 39]
(emphasis in original omitted). He further argues specific personal jurisdiction is improper
because of his lack of contact with the state of Tennessee and because his “representation of
Plaintiff took place entirely in Virginia, where [he] ran his law office, his contracts with
Tennessee in regard to Plaintiff are random, fortuitous, or attenuated.” [id. at Page ID # 42].
Plaintiff responded to Dunn’s motion to dismiss [Doc. 15], but fell short of establishing
that Dunn has sufficient contacts with Tennessee. Instead, she described, largely, “[t]he years I
lived in Virginia” [Doc. 15 at Page ID # 70] (emphasis added). She alleges “a conspiracy existed
against [her] and other physicians of color in the State of Virginia” and offers that she is “ready
to discuss and talk at length about events that occurred to me in Virginia.” [Id. at Page ID # 71]
(emphasis added). She also states that “[t]he case not only relates to the plaintiff, but, also to
other African-American physicians in the state of Virginia while she was practicing medicine in
that region. It is widely known that the Medical Board of Virginia violates human rights of
African-American physicians.” [Id. at Page ID # 69] (emphasis added). Pro se complaints are
liberally construed and held to less stringent standards than the formal pleadings prepared by
attorneys. Bridge v. Ocwen Fed. Bank, 681 F.3d 355, 358 (6th Cir. 2012). However, Plaintiff
does not make any factual allegations in her complaint [Doc. 2] or in her motion to deny Dunn’s
motion to dismiss [Doc. 15] that would establish Defendant Dunn had sufficient contacts with
the forum state.
When instructed to show cause regarding personal jurisdiction, Plaintiff asserted certain
facts related to Dunn and his relationship to Tennessee. In full, Plaintiff provided as follows:
Lawyer Stuart H. Dunn
Resides in the State of Virginia, he made contact with [Plaintiff] of
Chattanooga, TN by telephone on more than one occasion. The
initial contact was on July 25, 2016 from area code 804 and
telephone number 569-3917.
Lawyer Dunn sent a letter dated August 8, 2016 that contained a
check of $35.91 a balance refund for work done for plaintiff which
she paid him $1,000 for service around 1998.4
He wanted her e-mail address which she gave him via telephone.
He contacted her about three time at the address, she was unable to
save e-mails that he sent at s_roundtree@ bellsouth.net because as
soon as she opened the e-mails the addresses vanished.
On August 16, 2016 the package arrived from Lawyer Dunn
containing letters, notes, and a booklet.
He called again to check on the arrival of the package on August
19, 2016, and again on September 1, 2016 to ask if I was going to
cash the check.
Plaintiff attached as an exhibit the letter she received from Dunn [Doc. 46-1]. In the letter,
Dunn stated that he sent Plaintiff “documents you provided to me during the time I represented
you concerning the VA Board of Medicine. I also enclose a check in the amount of $35.91,
representing the remainder of your retainer.” [Id. at Page ID # 241].
[Doc. 46 at Page ID # 239] (footnote added).
None of the actions Plaintiff alleges would establish that Dunn had sufficient contacts
with Tennessee such that general or specific personal jurisdiction would be proper. Plaintiff’s
statements – that while Plaintiff was in Tennessee, Dunn contacted her by phone, mail, and
email, regarding legal services Dunn provided to Plaintiff in 1998 – do not indicate Dunn had
“continuous and systematic” contacts with Tennessee.
Field, 514 F. Supp. 2d at 1041.
Plaintiff’s allegations fail to satisfy due process, as she has not established Dunn “has such
minimum contacts with the forum state that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice.” Chenault, 36 S.W.3d at 53 (citations
Dunn’s alleged actions also do not establish specific personal jurisdiction because
Plaintiff has not shown that Dunn “purposely direct[ed] his activities toward citizens of the
forum state and litigation results from injuries arising out of or relating to those activities.
Burger King Corp., 471 U.S. at 471. Dunn’s efforts to contact Plaintiff to return certain funds to
her related to legal services he provided to her in 1998 does not constitute such “conduct and
connection with the forum state” that Dunn “should reasonably anticipate being haled into court
there.” World-Wide Volkswagen, 444 U.S. at 297. For the reasons above, the Court FINDS it
lacks personal jurisdiction over Defendant Dunn.
B. Personal Jurisdiction over Defendant Jean Baron
Defendant Baron submitted an affidavit with her motion to dismiss [Doc. 21-1]. In it, she
stated that she has never been to Tennessee, conducted business with others in Tennessee,
transacted business with others living or residing in Tennessee, or owned any property in
Tennessee [id. at Page ID # 111]. She states that she was an Assistant Attorney General in the
Maryland Attorney General’s Office from 1983 to 2000 and was a judge on the District Court of
Maryland for Prince George’s County, Maryland from 2000 until 2013 [id.].
accompanying memorandum submitted with her motion, Defendant Baron argues that she is not
subject to general jurisdiction as she has “no, much less sufficient, contacts with Tennessee to
allow the Court to exercise personal jurisdiction over her” and that “being hailed into a court
over 600 miles from her residence in Maryland would certainly ‘offend traditional notions of fair
play and substantial justice’ when she otherwise had no contacts with Tennessee.” [Doc. 21 at
Page ID #106-07] (internal citations omitted). She also argues the Court lacks specific personal
jurisdiction over her because she “has not conducted business with others in Tennessee or even
transacted business with others residing or living in Tennessee” and because “[Plaintiff]’s
Complaint is devoid of any allegations regarding Ms. Baron’s contact with the State of
Tennessee that gave rise to this litigation.” [Id. at Page ID #107]. Citing Walden v. Fiore, 134
S. Ct. 1115, 1121 (2014), Baron argues that the fact that Plaintiff currently resides in Tennessee
“is not enough to establish specific personal jurisdiction.” [Doc. 21 at Page ID #107].
Plaintiff filed a motion to deny the motion to dismiss [Doc. 25] filed by Baron, which the
Court treats as a response. In that motion, Plaintiff failed to adequately address any of the legal
arguments raised by Defendant Baron. In a two-sentence response to Baron’s motion, Plaintiff
cited no legal authority, nor did she establish any contacts that Baron has to Tennessee related to
the underlying case [id.]. Instead, she repeated a conclusory allegation that she is “a victim of
severe group discrimination which resulted in severe body harm and total body agony” [id.]. In
response to this Court’s Show Cause Order, Plaintiff does not address Baron, much less establish
that this Court has personal jurisdiction over Baron. For the reasons asserted in Baron’s motion
to dismiss [Doc. 20], accompanying memorandum [Doc. 21], and affidavit [Doc. 21-1], the
Court FINDS it lacks personal jurisdiction over Defendant Baron.
C. Personal Jurisdiction over Remaining Defendants
Nowhere in her complaint [Doc. 2] or responses to the Court’s Order to Show Cause
[Docs. 45, 46] does Plaintiff establish sufficient contacts between either Warren W. Koontz or
Dr. Oakfield and the forum state. The Court FINDS Plaintiff has failed to establish or set forth
facts that reasonably could establish general or specific personal jurisdiction for Defendants
Koontz and Dr. Oakfield.
As the Court FINDS that it lacks personal jurisdiction over all Defendants, Plaintiff’s
claims are DISMISSED.
INSUFFICIENT SERVICE OF PROCESS
Plaintiff was also ordered to show cause as to why this case should not be dismissed for
failure to effect proper service of process with regard to Koontz and Dr. Oakfield [Doc. 44 at
Page ID # 232-33]. Pursuant to Rule 12(b)(5), a plaintiff’s complaint may be dismissed for
failure to effect proper service of process on a defendant in accordance with Federal Rule of
Civil Procedure 4. Rule 4(e) provides:
Unless federal law provides otherwise, an individual—other than a
minor, an incompetent person, or a person whose waiver has been
filed—may be served in a judicial district of the United States by:
(1) 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
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint
to the individual personally;
(B) 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
(C) 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). Rule 4(m) provides, in part:
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). “It is axiomatic that the due process of law requires proper service of
process in order for the Court to obtain in personam jurisdiction over each defendant.” Campbell
v. United States, 496 F. Supp. 36, 39 (E.D. Tenn. 1980) (citation omitted). The plaintiff must
“exercise due diligence to perfect service of process after the filing of the complaint . . . .” Id.
Further, “[w]hen the validity of the service of process is contested, the plaintiff bears the burden
of proving that proper service was effected.” Frederick v. Hydro-Aluminum S.A., 153 F.R.D.
120, 123 (E.D. Mich. 1994) (citing Aetna Business Credit, Inc. v. Universal Decor & Interior
Design, Inc., 635 F.2d 434, 435 (5th Cir. 1981)).
A. Service of Process on Defendant Warren W. Koontz
The Court finds no indication in the record that Plaintiff has completed service on
Koontz. At various points during this litigation, Plaintiff has asserted that Koontz was the
Attorney General of Virginia (“. . . the Attorney General of Virginia, known as Warren W.
Koontz . . .”) [Doc. 15 at Page ID # 69] and the Director of the Virginia Medical Board (“Warren
W. Koontz MD, Director of Virginia Medical Board . . .”) [Doc. 2 at Page ID # 11; Doc. 17 at
Page ID # 86]. At one point, Plaintiff presented to the Court that Koontz was deceased, a claim
she substantiated with a printout of the website “findagrave.com” indicating burial information
for “William W Koontz,” who died August 28, 1998, according to the website printout filed with
the Court [Doc. 17]. Two days later, Plaintiff filed a “Correction of Mistake,” that stated “The
reporting that Dr. Warren Koontz as deceased in 1992 [sic] is false because I researched records
from the Medical Board of Virginia. Dr. Koontz was alive and well because he presided over
my case in September 1998.” [Doc. 18 at Page # 88]. To substantiate this assertion, Plaintiff
filed a letter dated September 9, 1998 that she indicates was signed by Warren W. Koontz, M.D.,
identified on the same as the “Executive Director, Virginia Board of Medicine” [Doc. 18 at Page
ID # 88; 18-1 at Page ID # 90]. In that filing, Plaintiff states that she “will continue to look for
an address for Dr. Koontz.” [Doc. 18 at Page ID # 88].
Following Plaintiff’s most recent attempt to serve Koontz that is reflected in the record,
service was returned on January 24, 2017 because Mr. Koontz did not live at the address Plaintiff
provided [Doc. 27 at Page ID #139-40]. Soon thereafter, Plaintiff filed a motion for default
judgment against Koontz seeking $20,000,000.00 ($20 million) in compensation [Doc. 36 at
Page ID #176-77]. When ordered to show cause as to why the case should not be dismissed for
insufficient service of process on Koontz, Plaintiff replied, in part:
I tried to locate Dr. Koontz on the internet but was unable to locate
him. The Research Librarian did a search which proved to be nil. I
am sure Dr. Koontz is alive and well in Virginia. Lawyer Dunn
referred to him in his first motion to the Court as being an out of
state resident. He has being served legally but continues to be
[Doc. 45 at Page ID # 234]. Plaintiff’s response is insufficient. Since the Show Cause Order, the
Court twice has issued an alias summons as to Koontz – on May 11 and 12, 2017, though there is
no evidence in the record that Koontz has been served.
Plaintiff filed her complaint on September 23, 2016 [Doc. 2] and was granted leave to
proceed in forma pauperis October 11, 2016 [Doc. 5]. Plaintiff has yet to establish that proper
service has been made on Warren W. Koontz or to establish “good cause” to request an
extension of time under Rule 4(m). The 90-day period within which Plaintiff was to serve
Koontz under Rule 4(m) has long since passed. “This Court disfavors the dismissal of any action
for the failure of the plaintiff to prosecute it; nevertheless, such is a necessary sanction ‘* * * in
order to prevent undue delays in the disposition of pending cases and to avoid congestion in the
calendar of the District Courts. * * *’ ” Campbell, 496 F. Supp. at 40 (quoting Link v. Wabash
Railroad Company, 370 U.S. 626, 629-630 (1962), rehearing denied, 371 U.S. 873 (1962)).
Plaintiff’s claim against Koontz is also DISMISSED pursuant to Rule 4(m).
B. Service of Process on Defendant Dr. Oakfield
Plaintiff failed to serve “Dr. Oakfield,” a named defendant in her complaint [Doc. 2].
Plaintiff therein describes “Dr. Oakfield” as working in the Infectious Disease Department at
Sentara Norfolk General Hospital at 600 Gresham Drive in Norfolk, Virginia [id. at Page ID #
12]. Plaintiff twice sent service of process via U.S. Postal Service certified mail to
INFECTIOUS DISEASE DEPARTMENT
SENTARA NORFOLK GENERAL HOSPITAL
600 GRESHAM DRIVE
NORFOLK, VA 23507
[Docs. 12, 16-2] (capitalization in original). The proof of service indicates the summons was
issued for “Dr. Oakfield.” To date, no response has been filed by an individual identified as “Dr.
Oakfield,” nor is it clear that such a person has been received service of process.
As this Court noted in its prior order [Doc. 44 at Page ID # 232, n.5], the service of
process appears to have been eventually received by Edward Oldfield, M.D. (“Oldfield”), who
filed a response [Doc. 22]. Dr. Oldfield, “proceed[ing] . . . out of an abundance of caution,” filed
a motion to dismiss or in the alternative a motion or a more definite statement [Doc. 22 at Page
ID #114, n.1]. In Plaintiff’s response to the Show Cause Order, she stated:
Edward C. Oldfield 111, MD is the physician that made the
complaints about me to the Medical Board of Virginia; I found his
name in the box that was sent to me by Lawyer Stuart H. Dunn. . . .
I found two address for him in a letter from a physician treating a
patient of Dr. Oldfield and mine . . . . Another address was found
near the Sentara General and I also listed it on the Summons that
was sent out as to correct Dr. Oldfield name .
[Doc. 45 at Page ID # 235].
Plaintiff’s response suggests Dr. Oldfield is in fact the party she intended to name as a
defendant, rather than Dr. Oakfield. However, Plaintiff has not amended her complaint to reflect
that Dr. Oldfield should be made a party in place of – or perhaps in addition to – Dr. Oakfield. A
person not named as a defendant is “a stranger to the suit” and “has no standing to file an answer
or motion to dismiss the action in the present posture of the case[.]” Castleman v. Alamo Plaza,
Inc., 296 F.2d 521, 523 (6th Cir. 1961). Previously, the Court declined to consider Dr. Oldfield’s
motion because he had not been made a party to this action [Doc. 44 at Page ID # 232, n.5].
To the extent that Plaintiff’s response suggests she intended to name Dr. Oldfield as a
defendant but listed Dr. Oakfield through a typographical error, the Court takes notes that Dr.
Oldfield asserts he was not properly served [Doc. 22]. He states that he was not served with a
summons and complaint by Plaintiff, but that “[i]nstead, several documents apparently were sent
to a hospital where I see patients (Sentara Norfolk General Hospital), received by someone there,
and later forwarded to me.” [Doc. 22-1 at Page ID #118]. This does not constitute sufficient
service of process under Rule 4(e)(2). Plaintiff did not cite to any Virginia procedural rules to
establish or assert that service of process for Dr. Oldfield was proper under Rule 4(e)(1), nor did
she provide any further details regarding how she effectuated proper service of process regarding
Dr. Oldfield. In all, Plaintiff has not shown good cause for failure to serve process within the
requisite time period, as required by Rule 4(m). Further, Plaintiff failed to amend her complaint
to make Dr. Oldfield a party to the suit.
For the reasons stated herein, the Court DISMISSES Plaintiff’s claim against Dr.
Oakfield, pursuant to Rule 4(m) and CLARIFIES Plaintiff did not properly make Dr. Oldfield a
party to this suit.
For the reasons stated above, the Court GRANTS the motions to dismiss [Doc. 10 & 20]
on the grounds set forth herein and DISMISSES the action filed by Plaintiff for lack of personal
jurisdiction as to each named Defendant and for failure to effect sufficient service of process
with regard to Defendants Koontz and Dr. Oldfield. The Court need not address the other
grounds for dismissal raised by the named Defendants. The Court DISMISSES AS MOOT all
other pending motions in this action and DIRECTS the Clerk to CLOSE this case.
s/fâátÇ ^A _xx
SUSAN K. LEE
UNITED STATES MAGISTRATE JUDGE
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