Moore v. Lee et al

Filing 54

MEMORANDUM: Accordingly, Defendants' motion to dismiss pursuant to Rule 12(b)(5)of the Federal Rules of Civil Procedure (Doc. 50) will be GRANTED. This case will be DISMISSED without prejudice, and the Clerk of Court will be DIRECTED to close the case. Signed by District Judge Curtis L Collier on 03/07/2025. (Copy of Memorandum mailed to Rex Moore) (CAT)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
REX A. MOORE,
Plaintiff,
v.
BILL LEE, et al.,
Defendants.

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Case No. 3:23-cv-196
Judge Collier
Magistrate Judge McCook

MEMORANDUM
Before the Court is a motion by Defendants, Bill Lee, Frank Strada, Sarah Dunn, James
Paschky, Johnny Caldwell, and David B. Rouse,1 to dismiss the complaint pursuant to Rule
12(b)(5) of the Federal Rules of Civil Procedure. (Doc. 50.) Alternatively, Defendants argue
Plaintiff’s claim is barred by the statute of limitations and sovereign immunity. (Id.) Plaintiff,
Rex A. Moore, has responded. (Doc. 53.) The matter is now ripe for review.
I.

BACKGROUND
On June 8, 2023, Plaintiff, Rex Allen Moore, filed a pro se complaint against Lee, Strada,

Dunn, Paschky, and Caldwell in their official capacities. (Doc. 1.) On July 27, 2023, Plaintiff
filed an amended complaint adding Rouse as a defendant. (Doc. 5.) In his amended complaint,
Plaintiff indicated that he was suing Rouse, Dunn, Paschky and Caldwell in both their official and
individual capacities. (Id.) On June 8, 2023, and July 27, 2023, the Clerk issued summonses for
all Defendants. (Docs. 2, 6.) On August 17, 2023, Plaintiff filed a “Notice of Filing Certified
Mail Return Receipts” for Defendants Dunn and Strada. (Doc. 7.) The mailing to Defendant Dunn

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David B. Rouse is incorrectly listed as David B. Rausch in the CM/ECF system. (See
Doc. 51 at 2.)

was received on July 31, 2023, by “C. Pruitt,” and the mailing to Defendant Strada was received
on August 2, 2023, by “Tyrone Hall.” (Id. at 1, 3). On September 22, 2023, Plaintiff filed a second
“Notice of Filing Certified Mail Return Receipts” regarding Defendant Lee. (Doc. 8). The mailing
to Defendant Lee was received on August 9, 2023, by “Mosley.” (Id. at 1.)
On February 29, 2024, Defendants filed a notice of insufficient service for all Defendants.
(Doc. 20.) Defendants explained that “none of the certified mail receipts were signed by the named
Defendants, the relevant affidavits attesting to means of service are incomplete and, at this time,
service in this matter is not proper.” (Id. at 3). Furthermore, “nothing in the record indicates any
attempt to serve the remaining named Defendants: [Defendant] Paschky, [Defendant] Caldwell,
and [Defendant] Rausch.” (Id.)
On March 26, 2024, Plaintiff filed an Application for Clerk’s Default as to all Defendants.
(Docs. 27–32.)

The Clerk determined that Plaintiff’s method of service did not comply with

Tennessee law and that Plaintiff failed to execute proofs of service for Defendants in this case.
(Doc. 35 at 4.) The Clerk denied the entry of default as to all Defendants because “there [was] no
evidence in the record that the summonses were personally accepted by the named Defendants or
that the individual who signed the return receipt was authorized to accept service of process on
their behalf.” (Id.)
On August 6, 2024, Plaintiff filed a motion asking the Court to temporarily stop all docket
filing because he could not “effectively research or respond timely” in this case due to “unstable
residency” and homelessness since June 2024. (Doc. 38 at 1–2.) On October 8, 2024, the Court,
interpreting this request as a motion to stay, denied the motion after determining a “stay of
proceeding would cause undue delay for a determination in this case.” (Doc. 39 at 2.) The Court
ordered Plaintiff to show cause within fourteen days why his complaint should not be dismissed

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for his failure to serve process on Defendants within ninety days of the filing of the complaint in
this matter. (Id.) On October 25 and 28, 2024, Plaintiff responded to the show cause order and
noted his difficulty in serving Defendants. (Docs. 40, 42.)
After weighing the factors set out in United States v. Oakland Physicans Medical Center,
LLC, 44 F.4th 565, 568 (6th Cir. 2022), on November 20, 2024, the Court gave Plaintiff an extra
thirty days to properly serve Defendants (Doc. 44), and the Clerk of Court reissued summonses to
Defendants the same day (Doc. 45). The Court warned Plaintiff that his failure to properly serve
Defendants in time would result in dismissal of this case without prejudice. (Doc. 44 at 1.)
Plaintiff’s deadline for proper service was December 20, 2024. (See id.)
On December 30, 2024, Plaintiff filed a notice with the Court indicating the summonses
had been mailed. (Doc. 46). Plaintiff stated he mailed a copy of the summons and complaint for
each Defendant to Tennessee’s Attorney General and Reporter Jonathan Skrmetti. (Id. at 1.) At
this time, Plaintiff suggested he needed more time to receive return receipts. (Id.)
On February 3, 2025, Plaintiff filed a notice of “summons now served.” (Doc. 48.) Once
again, Plaintiff represented that he served each Defendant by mailing a copy of the summonses
and complaint to Tennessee’s Attorney General and Reporter Jonathan Skrmetti. (Id. at 1.) He
claims Defendants were served near or on December 10, 2024. (Id.) On February 4, 2025, Plaintiff
filed a notice that Defendants were served in a different case, Case Number 3:24-cv-489. (Doc.
49 at 1.)
Defendants move to dismiss the complaint for insufficient service of process. (Doc. 50.)
Defendants represent that the Attorney General’s Office received the summonses for Defendants
Lee, Strada, Helton, Dunn, Paschky, Caldwell, and Rouse in their official capacities on January
21, 2025, but Plaintiff has not served any Defendant in their individual capacity. (Doc. 51 at 2.)

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On February 21, 2025, Plaintiff responded and acknowledged his inability to “timely
respond by certified mail [showing] proof of service” in this case. (Doc. 53 at 2.)
II.

STANDARD OF REVIEW
“The requirement of proper service of process is not some mindless technicality.” Vargo

v. Graves, No. 3:24-cv-153, 2024 WL 4829740 at *2 (M.D. Tenn. Oct. 21, 2024) (quoting
Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991)). “Nor is it ‘meant to be a
game or obstacle course for plantiffs.’” Emiabata v. Farmers Ins. Corp., No. 3:23-cv-263, 2024
WL 4940543, at *3 (M.D. Tenn. Dec. 2, 2024), report and recommendation adopted, No. 3:23CV-00263, 2024 WL 5248244 (M.D. Tenn. Dec. 30, 2024) (citation omitted). Instead, it “goes
to the very heart of a court’s ability to hear a case.” Vargo, 2024 WL 4829740 at *2.
Rule 12(b)(5) of the Federal Rules of Civil Procedure authorizes courts to dismiss a
complaint for “insufficient service of process,” including for failure to comply with the
requirements of Rule 4 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(b)(5); see, e.g.,
Emiabata, 2024 WL 4940543, at *3. A plaintiff is responsible for having the summons and
complaint served upon each defendant within the time allotted by Rule 4(m), and “[u]nless service
is waived, proof of service must be made to the court.” Fed. R. Civ. P. 4(l). A plaintiff bears the
burden of establishing that proper service has occurred. Tepe v. Whirlpool Corp., No. 22-5825,
2023 WL 6130297 at *2 (6th Cir. June 2, 2023); Thul v. Haaland, No. 1:20-cv-354, 2022 WL
20728031, at *2 (E.D. Tenn. Mar. 24, 2022). To determine whether a plaintiff has met this burden,
courts examine “record evidence . . . including uncontroverted affidavits.” Emiabata, 2024 WL
4940543, at *4 (internal quotations omitted) (quoting Metro. Alloys Corp. v. State Metals Indus.,
Inc., 416 F. Supp. 2d 561, 563 (E.D. Mich. 2006)).

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II.

DISCUSSION
Here, Defendants argue that the complaint should be dismissed against both the individual-

capacity Defendants and the official-capacity Defendants for insufficient service of process. (Doc.
51 at 4.)
A.

Individual-Capacity Defendants

Defendants argue that the claims against the individual-capacity Defendants should be
dismissed because “Plaintiff altogether failed to serve the individual capacity Defendants in the
600+ days since Plaintiff filed his complaint.” (Id.)
To properly serve a defendant in an individual capacity, the summons and complaint must
be served upon the “individual personally,” delivered “at the individual’s dwelling or usual place
of abode,” or left with “an agent authorized by appointment or by law to receive service of
process.” Fed. R. Civ. P. 4(e)(2). The Rules also allow a plaintiff to serve a defendant by
“following state law . . . in the state where the district court is located or where service is made.”
Fed. R. Civ. P. 4(e)(1).
Tennessee law permits service by mail. Tenn. R. Civ. P. 4.03(2). When process is served
by mail, “the original summons, endorsed as below; an affidavit of the person making service
setting forth the person’s compliance with the requirements of this rule; and the return receipt shall
be sent to and filed by the clerk.” Id. The return receipt must show “personal acceptance by the
defendant or by persons designated by Rule 4.04 or statute.” Tenn. R. Civ. P. 4.04(10). “If the
return receipt is signed by the defendant, or by a person designated by Rule 4.04 or by statute,
service on the defendant shall be complete. If not, service by mail may be attempted again or other
methods authorized by these rules or by statute may be used.” Tenn. R. Civ. P. 4.03(2).

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Here, the Court previously afforded Plaintiff some leniency and permitted additional time
to properly serve Defendants, noting Plaintiff’s pro se status and his apparent good-faith attempts
to serve Defendants. (Doc. 44.) However, over two months later, there is still no proof Plaintiff
has served the individual-capacity Defendants. There is no evidence in the record that the
summonses were personally accepted by the named Defendants or by a person designated by Rule
4.04 or statute. See Tenn. R. Civ. P. 4.03(2). Further, by failing to send the clerk the return
receipts, Plaintiff also did not serve Defendants in the manner prescribed by Tennessee law as
allowed by Rule 4 of the Federal Rules of Civil Procedure. See id.; Fed. R. Civ. P. 4(e)(1).
Accordingly, the claims against the individual capacity Defendants will be DISMISSED
WITHOUT PREJUDICE.
B.

Official-Capacity Defendants

Defendants also argue that the claims against the official-capacity Defendants should be
dismissed due to Plaintiff’s failure to comply with Rule 4(m). (Doc. 51 at 4.)
To properly serve an individual in an official state capacity, the individual must be served
“in the manner prescribed by that state’s law.” Fed. R. Civ. P. 4(j)(2)(B). According to Tennessee
state law, service shall be made by “delivering a copy of the summons and the complaint to the
attorney general of the state or to any assistant attorney general.” Tenn. R. Civ. P. 4.04(6).
On January 21, 2025, the Attorney General’s Office received the summonses for
Defendants Lee, Strada, Helton, Rouse, Dunn, Paschky, and Caldwell in their official capacities.
(Doc. 51 at 2.) Although Plaintiff served Defendants in their official capacity pursuant to Rule
4.04(6) of the Tennessee Rules of Civil Procedure, Defendants argue that the case should still be
dismissed because service happened thirty-two days after the Court’s extended deadline. (Id. at
4.)

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The Court warned Plaintiff that his failure to properly serve Defendants by December 20,
2024, would result in dismissal of his case without prejudice. (See Doc. 44 at 1.) “Although
[P]laintiff undertook some efforts to cure the deficiencies identified in the Court’s prior order
regarding service of process,” he nonetheless failed to comply with it when he served Defendants
over a month after the already-extended deadline. See Chaves v. U.S. Dep’t of Educ., No. 3:22cv-261, 2025 WL 255449, at *5 (E.D. Tenn. Jan. 21, 2025). Plaintiff should not “be allowed to
benefit unfairly from this excessive delay.” See Williams v. Witsell, No. 3:07-cv-243, 2008 WL
5120904, at *2 (E.D. Tenn. Dec. 3, 2008). Therefore, the Court finds that dismissal without
prejudice under Rule 4(m) is warranted. The claims against the official-capacity Defendants will
be DISMISSED WITHOUT PREJUDICE.
III.

CONCLUSION
Accordingly, Defendants’ motion to dismiss pursuant to Rule 12(b)(5) of the Federal Rules

of Civil Procedure (Doc. 50) will be GRANTED. This case will be DISMISSED without
prejudice, and the Clerk of Court will be DIRECTED to close the case.

AN APPROPRIATE ORDER WILL ENTER.

/s/
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE

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