Robinson v. Tennessee Highway Patrol

Filing 23

ORDER OVERRULING PLAINTIFFS OBJECTIONS TO REPORT AND RECOMMENDATION, ADOPTING REPORT AND RECOMMENDATION, GRANTING DEFENDANTS MOTION TO DISMISS, AND DISMISSING CASE WITHOUT PREJUDICE. Signed by Judge J. Daniel Breen on 7/31/17. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
TRAVIS LAMONT ROBINSON,
Plaintiff,
v.

No. 1:16-cv-01296-JDB-egb

TENNESSEE HIGHWAY PATROL,
Defendant.
_____________________________________________________________________________
ORDER OVERRULING PLAINTIFF’S OBJECTIONS TO REPORT AND
RECOMMENDATION, ADOPTING REPORT AND RECOMMENDATION,
GRANTING DEFENDANT’S MOTION TO DISMISS, AND DISMISSING CASE WITHOUT
PREJUDICE
____________________________________________________________________________
I. INTRODUCTION AND BACKGROUND
On November 16, 2016, the pro se Plaintiff, Travis Lamont Robinson, filed a complaint
against the Defendant, Tennessee Highway Patrol, alleging racial discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e. (Docket Entry
(“D.E.”) 1.) Pursuant to Administrative Order No. 2013-05, this action was referred to the
assigned magistrate judge, Edward G. Bryant, for management of all pretrial matters, including
screening of the complaint. In an order entered December 2, 2016, Judge Bryant directed the
Clerk of Court to forward a blank summons form to the Plaintiff, which he was to complete and
return to the Clerk’s office for certification. (D.E. 11.) Robinson was instructed to then effect
service on the Defendant pursuant to Rule 4 of the Federal Rules of Civil Procedure. (Id.) On
December 12, 2016, the Clerk signed the summons and issued it to the Plaintiff. (D.E. 13.) The
summons was returned executed on January 19, 2017, indicating that Robinson had left the

summons with “Jessica Gibbs, Secretary” on January 3, 2017, “and mailed a copy to the
individual’s last known address.” (D.E. 15 at PageID 122.)
On January 27, 2017, the Defendant moved to dismiss the complaint for insufficient
service in accordance with Fed. R. Civ. P. 12(b)(5).1 (D.E. 16.) Judge Bryant, on June 21, 2017,
recommended that the motion be granted. (D.E. 19.) Plaintiff filed timely objections to the
report and recommendation (D.E. 20), to which the Defendant responded (D.E. 22). The matter
is now ripe for disposition.
II. COURT’S REVIEW OF MAGISTRATE JUDGE’S DETERMINATION
When objections have been filed with respect to a report and recommendation of the
magistrate judge, the district judge “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); see also Fed. R. Civ. P. 72(b)(3). He “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); see also Fed. R. Civ. P. 72(b)(3). The district judge may not “simply concur” in the
magistrate judge’s findings, but must “conduct [his] own review in order to adopt the
recommendations.” Fharmacy Records v. Nassar, 465 F. App’x 448, 456 (6th Cir. 2012) (per
curiam) (internal quotation marks omitted).
III. ANALYSIS
Rule 12(b)(5) permits the district court to dismiss complaints for “insufficient service of
process.” Fed. R. Civ. P. 12(b)(5). The requirement that service be properly made “is not some
mindless technicality.” Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991);
Payne v. Tenn., No. 2:14-0047, 2014 WL 3362247, at *3 (M.D. Tenn. July 8, 2014), report &

1

The Plaintiff did not respond to the motion to dismiss.
2

recommendation adopted 2014 WL 5846555 (M.D. Tenn. Nov. 12, 2014). “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.” Roundtree-Chism v. Dunn, No. 1:16-cv-387-SKL,
2017 WL 2312900, at *6 (E.D. Tenn. May 26, 2017) (quoting Campbell v. United States, 496 F.
Supp. 36, 39 (E.D. Tenn. 1980)), appeal filed (No. 17-5629) (6th Cir. June 6, 2017). “The
plaintiff must exercise due diligence to perfect service of process after the filing of the
complaint.” Id. (quoting Campbell, 496 F. Supp. at 39) (internal quotation marks omitted).
“Actual knowledge and lack of prejudice cannot take the place of legally sufficient service.”
Payne, 2014 WL 3362247, at *3 (quoting LSJ Inv. Co., Inc. v. OLD, Inc., 167 F.3d 320, 324 (6th
Cir. 1999)).
Service of process is governed by Rule 4 of the Federal Rules of Civil Procedure. “Once
a defendant brings [a motion under Rule 12(b)(5)], the plaintiff bears the burden of establishing
that service of process has been accomplished in a manner that complies with [Rule 4].”
McInerney v. Roosen Varchetti & Olivier, PLLC, Case No. 17-10037, 2017 WL 2403577, at *2
(E.D. Mich. June 1, 2017) (quoting Aslani v. Sparrow Health Sys., Case No. 1:08-CV-298, 2009
WL 10665237, at *2 (W.D. Mich. Apr. 16, 2009)) (internal quotation marks omitted). In
deciding whether a plaintiff has met his burden, the court may “look to record evidence.”
McCord v. Bd. of Educ. of Fleming Cty., Civil Action No. 5:16-CV-75-JMH, 2017 WL 1217170,
at *2 (E.D. Ky. Mar. 31, 2017) (internal quotation marks omitted), appeal filed (No. 17-5548)
(6th Cir. May 12, 2017).

3

Under Rule 4(j)(2), a state government2 must be served by one of two methods: (1)
“delivering a copy of the summons and of the complaint to its chief executive officer” or (2)
“serving a copy of each in the manner prescribed by that state’s law for serving a summons or
like process on such a defendant.” Fed. R. Civ. P. 4(j)(2); see also Wheck v. Bd. of Tr. of the Ky.
Teacher’s Ret. Sys., Civil Action No. 3:15-CV-692-CRS, 2016 WL 5796915, at *13 (W.D. Ky.
Sept. 30, 2016) (“In order to serve process on a state-created governmental organization, the
plaintiff must follow the state’s law or serve process on the organization’s chief executive
officer.”), appeal dismissed (6th Cir. Feb. 16, 2017). The chief executive officer of Tennessee
for purposes of service is the governor, who was not served with the instant summons and
complaint. See LeBlanc v. Hagan, Civil Action No. 1:16-CV-00178-GNS, 2017 WL 2779490,
at *4 (W.D. Ky. June 27, 2017) (chief executive officer of Tennessee for purposes of service on
state agency under Rule 4(j)(2) is the governor). With respect to the second method, Rule 4.04
of the Tennessee Rules of Civil Procedure provides that service “[u]pon the state of Tennessee or
any agency thereof, [must be effected] by delivering a copy of the summons and of the complaint
to the attorney general of the state or to any assistant attorney general.”3 Tenn. R. Civ. P.
4.04(6). While the docket reflects issuance of a summons to the Tennessee Highway Patrol (see
D.E. 13), there was no service upon the Tennessee Attorney General. See LeBlanc, 2017 WL
2779490, at *4-5 (where summons named Tennessee state agency as defendant but plaintiff
failed to serve the attorney general or assistant attorney general, service was not proper). As the

2

In its motion to dismiss, the Defendant noted that the Tennessee Highway Patrol is not a
governmental entity subject to suit, but is a division of the Tennessee Department of Safety and
Homeland Security.
3

In his objections to the report and recommendation, Robinson cites to the Ohio Rules of
Civil Procedure. However, there is nothing in the record to suggest that the procedural rules of
Ohio have any application to this case.
4

summons and complaint were not served in accordance with Rule 4(j)(2), service was
insufficient.
Courts have broad discretion to dismiss actions for insufficient service.

Sherer v.

Construcciones Aeronauticas, S.A., 987 F.2d 1246, 1247 (6th Cir. 1993); McInerney, 2017 WL
2403577, at *4. Here, although the Plaintiff concedes that his attempt at service was insufficient,
he has apparently made no effort since the filing of the Defendant’s motion in January 2017 to
rectify his error. This Court agrees with the court in Payne, which noted that, even though “the
Court sympathizes with [plaintiff’s] attempts as a pro se litigant to effect proper service of
process, neither the Court nor the Clerk can assist him in this endeavor.” Payne, 2014 WL
3362247, at *3. Moreover, the procedural rules applicable to civil cases must be followed by the
represented and unrepresented alike. McNeil v. United States, 508 U.S. 106, 113 (1993). In light
of his failure to comply with Fed. R. Civ. P. 4, Plaintiff’s complaint is DISMISSED without
prejudice for insufficient service of process.
IV. CONCLUSION
For the reasons articulated herein, the Plaintiff’s objections to the magistrate judge’s
report and recommendation are OVERRULED, the report and recommendation is ADOPTED,
the Defendant’s motion to dismiss is GRANTED, and this matter is DISMISSED without
prejudice.
IT IS SO ORDERED this 31st day of July 2017.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

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