Skinner v. City of Memphis et al

Filing 42

ORDER granting 19 Motion to Dismiss. Signed by Judge Samuel H. Mays, Jr on 09/30/2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

HAZEL SKINNER, as Personal
Representative for the Estate
of Duannel (“Duanna”) Johnson
(Deceased) and on Behalf of
the Heirs to said Estate,
Plaintiff,
v.
CITY OF MEMPHIS, MEMPHIS
POLICE DEPARTMENT, and BRIDGES
MCRAE
Defendants.

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) No. 09-2071
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ORDER GRANTING MOTION TO DISMISS

Plaintiff Hazel Skinner (“Skinner”) brings this

action as

the personal representative of the estate of Duannel (“Duanna”)
Johnson (“Johnson”) (Deceased) and on behalf of the heirs to the
estate

against

Defendants

the

City

of

Memphis,

the

Memphis

Police Department (collectively “Memphis”), and Bridges McRae
(“Officer McRae”).

(Compl., ECF No. 1.)

Skinner asserts claims

under 42 U.S.C. § 1983 and Tennessee tort law.
2012, Memphis filed a Motion to Dismiss.
No. 19.)
29.)

On February 21,

(Mot. to Dismiss, ECF

Skinner responded on April 12, 2012.

(Resp., ECF No.

Memphis replied on April 25, 2012, and Skinner filed a

sur-reply on May 16, 2012, in which she moved for sanctions

because of alleged misrepresentations.
Reply, ECF No. 34.)
Memphis’

Motion

(Reply, ECF No. 30; Sur-

For the following reasons, the Court GRANTS

and

DISMISSES

Skinner’s

suit

against

Memphis

without prejudice.
I.

Background

Skinner

alleges

that

Johnson,

a

transgender

woman,

was

arrested without probable cause by the Memphis Police Department
on February 12, 2008.

(Compl. ¶¶ 6-7.)

Skinner alleges that

Johnson was assaulted by Officer McRae while in custody and that
he insulted her by calling her a “he-she,” a “faggot,” and other
derogatory names.
comply

with

(Id. ¶¶ 8-9, 15.)

Officer

McRae’s

orders,

When Johnson refused to
he

allegedly

hit

her

repeatedly on the head with his fist, which was wrapped with
handcuffs.

(Id. ¶ 12.)

Skinner also alleges that Officer McRae

used a chemical irritant on Johnson in excess of the limits
prescribed by the irritant’s manufacturer.

(Id. ¶ 14.)

Skinner alleges that Johnson received numerous injuries as
a result of the assault and that Memphis police officers who
witnessed the assault failed to intervene.

(Id. ¶¶ 17-19.)

officer

the

present

reported

the

incident

Department’s Internal Affairs.

to

(Id. ¶ 27.)

Memphis

No

Police

Skinner alleges

that the Memphis Police Department did not investigate Officer
McRae’s actions until a video of the incident was made public.
(Id. ¶ 22.)
2

Skinner

filed

her

Complaint

McRae on February 10, 2009.

against

Memphis

(ECF No. 1.)

and

Officer

Skinner issued a

Summons against Officer McRae on April 23, 2009.

(ECF No. 4.)

Memphis filed a Motion for Extension of Time to File Answer on
May 27, 2009.

(ECF No. 7.)

Memphis’ Motion stated that it had

been served with the Complaint on May 7, 2009.

(Id.)

Memphis

filed an initial Motion to Dismiss on May 28, 2009, in which it
objected to improper service of process.

(ECF No. 8.)

The

Court granted Officer McRae’s Motion to Stay the case on June 1,
2009, and administratively closed the case.
The

stay

was

lifted

on

February

14,

(ECF No. 10-11.)

2012.

(ECF

No.

16.)

Memphis filed the Motion to Dismiss at issue on February 21,
2012.

(ECF No. 19.)
Memphis moves to dismiss for improper service of process

and defects in Skinner’s legal claims. (Mem. in Supp. of Defs.’
Mot. to Dismiss, ECF No. 19-1 (“Mem. to Dismiss”).)

Because

Memphis has not been served, the Court need not address the
claims in Skinner’s Complaint.
II.

Jurisdiction

Skinner brings suit under 42 U.S.C. § 1983.

This Court has

subject matter jurisdiction to adjudicate federal claims under
28 U.S.C. § 1331. This court also has supplemental jurisdiction
over state law tort claims under 28 U.S.C. § 1367.
III. Standard of Review
3

When a defendant files a motion to dismiss for insufficient
service of process, the plaintiff “bears the burden of executing
due diligence in perfecting service of process and showing that
proper service was made.”

Mullins v. Kalns, No. 99-4031, 2000

U.S. App. LEXIS 28063, at *8-9 (6th Cir. Nov. 3, 2000); see also
Portis v. Caruso, No. 1:09-cv-846, 2010 U.S. Dist. LEXIS 94868,
at *28 (W.D. Mich. July 28, 2010) (“The plaintiff bears the
burden of proving that proper service was effected.”); Grubb v.
Collins, No. 1:09-cv-263, 2010 U.S. Dist. LEXIS 90984, at *2
(S.D. Ohio July 14, 2010) (noting that the plaintiff bears the
burden of showing that proper service has been made).
The Sixth Circuit has not addressed how a plaintiff may
satisfy her burden of proof for purposes of a motion to dismiss.
Other Circuits have done so.

“[T]o make a prima facie showing

[of service], the movant must simply produce a return of service
identifying the recipient.”

Relational, LLC v. Hodges, 627 F.3d

668, 672 (7th Cir. 2010).

Such an affidavit “can be overcome

only

by

strong

and

convincing

evidence.”

SEC

v.

Internet

Solutions for Bus., Inc., 509 F.3d 1161, 1163 (9th Cir. 2007)
(quoting O’Brien v. R.J. O’Brien & Assocs., Inc., 998 F.2d 1394,
1398 (7th Cir. 1993)).

Although a “process server’s affidavit

of service establishes a prima facie case” of service, “[a]
defendant’s sworn denial of receipt of service . . . rebuts the
presumption.”

Old Republic Ins. Co. v. Pac. Fin. Servs. of Am.,
4

Inc. 301 F.3d 54, 57 (2d Cir. 2002) (applying the state law of
New

York);

see

also

People’s

United

Equip.

Fin.

Corp.

v.

Hartmann, No. 10-20875, 2011 U.S. App. LEXIS 16560, at *4, (5th
Cir. Aug. 9, 2011) (requiring “strong and convincing” evidence
to overcome a plaintiff’s prima facie evidence).

The defendant

has the burden of rebutting the plaintiff’s prima facie case.
IV.

Analysis

Service of process, or a waiver of service, is a
prerequisite to a court’s personal jurisdiction over a defendant
in every civil action.

Harris v. City of Cleveland, 7 Fed.

Appx. 452, 455 (6th Cir. 2001) (“Without such ... service, a
district court is without jurisdiction to render judgment
against the defendant.”)

If “a defendant is not served...the

court ... must dismiss the action without prejudice against the
defendant or order that service be made within a specific time.”
Fed. R. Civ. P. 4(m).

Skinner argues that service was satisfied

by Memphis’ statement that it was served in its Motion to Extend
Time to answer or otherwise plead or, in the alternative, that
service was excused by Memphis’ oral agreement to waive service.
(Mot. to Extend, ECF No. 7; Wells Aff. ¶7, ECF No. 34-1.)
Skinner contends that, in either case, Memphis is estopped from
disputing service of process.

(Sur-reply, ECF No. 34.)

Skinner

moves for an extension of time to serve Memphis if the Court
finds that it was not properly served.
5

A. Service of Process
Skinner did not, and has not, served Memphis.

To prevent

dismissal of an action, a plaintiff must serve a defendant, or
obtain a waiver of service, within 120 days after the complaint
is filed.

Fed. R. Civ. P. 4(m).

Skinner filed her Complaint on

February 10, 2009, and the deadline to serve Memphis was June
10, 2009.

(Compl., ECF No. 1.)

Memphis filed its Motion to

Dismiss alleging failure of service of process on May 28, 2009,
(Mot. To Dismiss, ECF No. 8.), and the matter was stayed on June
1, 2009, (Order Granting Mot. to Stay, ECF No. 10.), 111 days
after the Complaint was filed.

The stay was lifted by order of

the Court on February 14, 2012.

(Order Lifting Stay, ECF No.

16.)

Despite the stay, Skinner’s obligation to serve Memphis,

or to obtain a waiver of service, on or before June 10, 2009,
was unchanged.

In the Sixth Circuit, a stay does not toll the

120-day period for service because the court does not have power
to issue orders affecting parties over which it does not have
personal jurisdiction.

Friedman v. Estate of Presser, 929 f.2d

1151, 1156-57 (6th Cir. 1991).

Even if the stay had tolled the

running of the 120-day period, Skinner did not serve Memphis
before the stay became effective and did not serve it in the
nine remaining days of the 120-day period after the stay was
lifted.

Skinner has not attempted to serve Memphis at any time

since the stay was lifted.
6

Skinner contends that service was satisfied by Memphis’
statement in its Motion to Extend Time that it had been served
on May 7, 2009.

Service of Process must be accomplished in

keeping with the requirements of the Federal Rules of Civil
Procedure.

See Fed. R. Civ. P. 4(a)-(c), (j), (m).

Skinner

admits that she did not serve Memphis as required by Rule 4.
(June 11, 2011 Letter, ECF No. 30-1.)

Even if actual service

were presumed, reference to service in a Defendant’s Motion
would not be sufficient proof that proper service had been made.
The burden of proving perfection of service of process is on the
plaintiff.

Mullins 2000 U.S. App. LEXIS 28063, at *8-9.

The

generally accepted methods of establishing service are
production of “a return of service identifying the recipient,”
Relational, 627 F.3d at 672, or “a process server’s affidavit of
service.”

Old Republic Ins., 301 F.3d at 57.

Skinner cannot

produce either of those documents because she has not served
process on Memphis.

Memphis’ statement alone is insufficient

proof to establish Skinner’s prima facie case of service.

Cf.

Relational, 627 F.3d at 672.
B. Waiver of Service
Skinner did not obtain a proper waiver of service from
Memphis within the required 120-day period.

Skinner does not

argue that she ever properly notified Memphis by requesting
waiver of service in writing.

She does not argue that Memphis
7

returned a written waiver of service in response to a request.
Skinner states that her counsel asked Memphis to waive service
and that Memphis through its counsel orally agreed to waive
service during a conversation on May 26, 2009.
7, ECF No. 34-1.)

(Wells Aff. ¶ 6-

These contentions, even if presumed true, do

not satisfy the requirement to serve process or to obtain a
waiver of service.

Under Federal Rule of Civil Procedure 4, an

oral promise, even if made, is not a valid waiver of service.
See Carmen v. City of Pleasantville, 2007 U.S. Dist. LEXIS
42410, at *8-9 (D. N.J. June 11, 2007) (representations of a
party’s attorney did not constitute a de facto waiver of service
and the burden remained on plaintiff to perfect).

A plaintiff

is entitled to request a waiver of service from a defendant to
“avoid unnecessary expenses of serving the summons.”
Civ. P. 4(d)(1).

Fed. R.

The waiver must be filed to secure personal

jurisdiction over the defendant.

Therefore, “the notice and

request must ... be in writing.”

Id. at 4(d)(1)(A).

The

plaintiff must send the waiver in the proper form, including
“two copies of a waiver form, and a prepaid means for returning
the form.”

Id. at 4(d)(1)(C).

There is no waiver of the

service requirement “[if] a defendant...fails...to sign and
return a waiver requested by a plaintiff.”

Id. at 4(d)(2).

If

the defendant does not sign and return a waiver, the plaintiff
must serve the defendant pursuant to the requirements of Federal
8

Rule of Civil Procedure 4.

Jordan v. Ohio State Univ., 2010

U.S. Dist. LEXIS 78735, at *8 (S.D. Ohio July 13. 2010).
Neither Skinner’s counsel’s oral request for a waiver nor
Memphis’ counsel’s oral agreement to waive service would satisfy
the requirements of Rule 4.
On June 11, 2009, after the case had been stayed, Skinner’s
counsel sent a letter to Memphis, asking it to waive service and
stating that service of process had been lost in the mail.
(June 11, 2009 Letter, ECF No. 30-1.)

That letter, although a

properly formatted notice and request for waiver of service with
the necessary attachments, was not sent until the 121st day after
the filing of the Complaint and is not an effective substitute
for service.

(See Compl., ECF No. 1.)

Skinner has not produced

a return of waiver of service for Memphis in response to her
counsel’s letter.

Skinner’s claims that service was properly

excused in this case are without merit.
C. Estoppel and Additional Time to Serve for Good Cause
Skinner’s claim that Memphis is estopped from disputing
service of process because of its motion acknowledging service
or because of its alleged oral waiver is not well taken.

There

is no estoppel or acquiescence by a defendant in an action where
no service or waiver of service has been filed with the court
because the court does not have jurisdiction to hear the case.
Harris, 7 Fed. Appx. at 455, see also Griffin v. Lafourche
9

Parish Sch. Bd., 2006 U.S. Dist. LEXIS 43667, at *2 (E.D. La.
May 25, 2006) (dismissing suit because no waiver of service was
filed).

Except in the narrow line of cases allowing equitable

waiver, a plaintiff can only be released from her obligation to
serve process by a defendant’s waiver made in compliance with
Federal Rule of Civil Procedure 4.

If a defendant is not served

or a waiver of service is not obtained within the 120-day limit,
“the court – on motion or on its own after notice to the
plaintiff – must dismiss the action without prejudice against
that defendant.”

Fed. R. Civ. P. 4(m) (emphasis added).

The

only exception to the strict application of this rule is the
Court’s discretion to extend time for service when plaintiff
shows good cause for her failure to serve process or to obtain a
waiver of service.

Id.

Skinner seeks additional time to serve Memphis under this
exception if the Court finds, as it does, that Memphis was
neither served nor waived service.

Skinner says that she

attempted to request a waiver of service from Memphis on
February 12, 2009.

(June 11, 2009 Letter, ECF No. 30-1.)

Skinner says that the necessary waiver documents were mailed to
Memphis by her counsel on February 12 and that she did not know

10

they had not reached the defendant until June 11, when she sent
them again.

(Id.)1

Skinner filed her complaint on February 10, 2009.
ECF No. 1.)

(Compl.,

Memphis filed its Motion to Dismiss alleging lack

of service of process on May 28, 2009, before the expiration of
the 120-day service period on June 10, 2009, giving Skinner
notice that service had not been received.
ECF No. 8.)

(Mot. to Dismiss,

Plaintiff “bears the burden of executing due

diligence in perfecting service of process and showing that
proper service was made.”
at *8-9.

Mullins, 2000 U.S. App. LEXIS 28063,

Skinner did not attempt to serve Memphis or to obtain

a waiver of service within the permitted period after being made
aware that Memphis disputed service.
Skinner moved for leave to serve Memphis in April 2012 in
response to Memphis’ renewed Motion to Dismiss.
to Dismiss, ECF No. 29.)

(Resp. to Mot.

Skinner contends that her detrimental

reliance on Memphis’ oral waiver of service and on Memphis’
motion

stating

that

it

had

been

served

is

sufficient

to

establish good cause for additional time. (Id.)
The Sixth Circuit requires at least excusable neglect to
establish good cause.
650 (6th Cir. 2005).

Turner v. City of Taylor, 412 F.3d 629,
That standard is “‘strict[] and can be met

1

Although these contentions appear to contradict Skinner’s earlier claims about
Memphis’ oral waiver, the Court will treat them separately as support for alternative
grounds of relief.

11

only

in

extraordinary

cases.’”

Id.

(quoting

Richardson, 873 F.2d 129, 130 (6th Cir. 1989)).
show that her neglect was excusable.
have

been

aware

of

what

was

Marsh

v.

Skinner cannot

She was aware or should

necessary

to

requirements of Federal Rule of Civil Procedure 4.

satisfy

the

The Rule is

clear; a waiver of service must be requested and returned in
writing within 120 days of filing the complaint.
P. 4(m).

Fed. R. Civ.

In the alternative, service of process must be made on

the defendant and proven by plaintiff’s production of a return
of service or process server’s affidavit within 120 days of
filing the complaint.
was

Skinner’s

perfected.

See, e.g. Relational 627 F.3d 672.

responsibility

to

ensure

that

service

It
was

Moss v. Tenn. Dep’t of Human Servs., No. 2:07-0012,

2009 U.S. Dist. LEXIS 73106, at *10 (M.D. Tenn. July 31, 2009);
accord Baumer v. Bandyk, No. 1:06-cv-573, 2006 U.S. Dist. LEXIS
73531,

at

*3

(W.D.

Mich.

Oct.

10,

2006).

Memphis

informed

Skinner that “service was not proper . . . before the time limit
for service of process expired,” but she did nothing within that
time.

Dreier v. Love, 3 F. Appx. 497, 498 (6th Cir. 2001);

accord Dunham-Kiely v. United States, No. 3:08-cv-114, 2010 U.S.
Dist. LEXIS 46114, at * 12 (E.D. Tenn. May 11, 2010).

Skinner’s

decision not to act despite notice of improper service precludes
application of the excusable neglect doctrine.
the

part

of

counsel

or

‘half-hearted
12

“Inadvertence on

efforts

to

serve

a

defendant within the statutory period does not constitute good
cause.’”

Mick v. Stanforth, No. 2:08-cv-990, 2009 U.S. Dist.

LEXIS 47887, at *4 (S.D. Ohio May 27, 2009) (quoting Friedman,
929 F.2d at 1157).

Skinner has failed to show “‘why service was

not made within the time constraints.’”

Nafziger v. McDermott

Int’l, Inc., 467 F.3d 514, 521 (6th Cir. 2006) (quoting Habib v.
GMC, 15 F.3d 72, 73 (6th Cir. 1994)).
D. Equitable Waiver of Service
Although service of process is an independently necessary
component of personal jurisdiction and its requirements are
clearly delineated by Federal Rule of Civil Procedure 4,
equitable, or de facto, waiver of service has been recognized in
some cases when the defendant participates in pre-trial matters.
See, e.g., United States v. Brow, 2012 U.S. Dist. LEXIS 37828,
*9-10 (E.D.N.Y. March 15, 2012).

A court’s determination that

service of process should be waived despite a plaintiff’s
failure to comply with statutory requirements is a fact-bound
decision that must consider the totality of the relevant
circumstances.

See, e.g., Marchese v. Marchant Ladder, Inc.,

2011 U.S. Dist. LEXIS 108531, at *8 (D. Conn. Sept. 22, 2011).
In Datskow v. Teledyne, Inc., the Second Circuit held that
“a delay in challenging personal jurisdiction by motion to
dismiss has resulted in waiver, even where...the defense was
asserted in a timely answer.”

899 F.2d 1298, 1303 (2nd Cir.
13

1991).

Service of process, or a waiver of service, is a

prerequisite to a court’s personal jurisdiction over a defendant
in every civil action.

Harris, 7 Fed. Appx. at 455 (“Without

such ... service, a district court is without jurisdiction to
render judgment against the defendant.”)

In Datskow, the

“plaintiff’s mailing of the summons and complaint provided
notice to defendant,” but “it did not constitute proper service
that permits the exercise of personal jurisdiction.”
at 1302.

899 F.2d

Plaintiff claimed that “defendant waived proper

service by participating in the litigation without questioning
personal jurisdiction...prior to the expiration of the statute
of limitations.”

Id. at 1303.

The Court found that “under all

the circumstances...defendant’s conduct bar[red] it from
complaining about the defective form of service.”

Id.

In

Datskow, the defendant’s participation consisted of “attend[ing]
the conference with the magistrate and participat[ing] in
scheduling discovery and motion practice.”

Id.

The Court

stated that it would be more hesitant to find a waiver if the
defendant had also contested personal jurisdiction on other
grounds.

Id.

However, in Datskow, “amenability of [defendant]

Teledyne Industries, Inc. to the jurisdiction of the…District
[was] clear, and defendant [complained] only about a defect in
the form of service…that could have been readily cured during

14

the limitations period if defendant had promptly complained.”
The Court refused to dismiss the case on that ground.

Id.

The Sixth Circuit has not directly ruled on this issue, but
two districts courts have applied the reasoning of the Second
Circuit in Datskow.

In West v. Hilton, the Southern District of

Ohio found that defendants’ “failure to assert the affirmative
defenses of insufficient service of process or personal
jurisdiction before...the deadline ordered by the Court...as
well as Defendants’...active participation in the litigation for
a year before filing the Motion, amount[ed] to a waiver of those
affirmative defenses.”

No. 3:10-cv-284, 2012 U.S. Dist. LEXIS

45880, at *3 (S.D. Ohio Apr. 2, 2012) (citing Datskow, 899 F.2d
at 1303).

The court found that prior to submission of the

Motion to Dismiss, “the parties conferred and jointly submitted
a Rule 26(f) report,” and the “Defendants, through Counsel, then
participated in the Preliminary Pretrial Conference.”

Id.

Defendants also “served Plaintiff with written discovery
requests and...engaged in motion practice...seeking discovery
orders” before raising their objection.

Id.

In Auto Club Group Ins. Co. v. Foxconn/Hon Hai Logistics,
Texas, LLC, plaintiff mailed a summons and waiver to defendant,
who never returned the waiver.
*2-3 (E.D. Mich. 2009).

2009 U.S. Dist. LEXIS 76771, at

Plaintiff made no additional attempts

to serve defendant, and defendant later moved to dismiss the
15

case on the ground of improper service.

Id. at *3.

The court

found that the “circumstances...demonstrate that [defendant]
waived its objection to service,” when it “communicated with
Plaintiffs...[to] formulate[] the joint discovery plan...served
its Rule 26(a)(1) disclosures...[and] began sending out
interrogatories and requests for production of documents”
without reasserting its objection to improper service.

Id. at

*6.
Although Memphis participated in some pretrial matters,
under the totality of the circumstances, its participation was
insufficient to justify an equitable waiver of service.
Memphis’ actions are distinguishable from those of the
defendants in other cases that have recognized this exception
because its delay in asserting the defense was shorter, the
Plaintiff, Skinner, had an opportunity to cure the defect, and
Memphis’ participation in pretrial matters was less extensive.
Memphis first raised its objection to improper service on
May 28, 2009, three months after Skinner filed her Complaint and
only one day after Memphis first participated in the suit by
consulting with Skinner’s attorney and filing a Motion to Extend
Time to Answer.

(Mot. to Extend Time, ECF No. 7; Cert. of

Consultation, ECF No. 7-2.)

In West, a year had passed between

defendants’ initial participation in the case and their
assertion of insufficient service of process.
16

See 2012 U.S.

Dist. LEXIS 45880, at *2.

In Auto Club, eight months had passed

between the time defendant became aware of the defect in service
and its motion to dismiss on that ground.
LEXIS 76771, at *3-4.

See 2009 U.S. Dist.

Memphis’ Motion to Dismiss was filed

before the expiration of the 120-day period, so Skinner had both
an obligation and an opportunity to cure the defective service.
(See Mot. to Dismiss, ECF No. 9.)
Memphis’ participation in the pretrial proceedings in this
case was less extensive than in any of the cases where equitable
waiver was granted.

Memphis filed a Motion to Extend Time to

Answer or Otherwise Plead and its Consultation with Skinner’s
counsel on the issue of the Motion to Extend only, both on the
day

before

Extension,

the
ECF

Motion
No.

7;

to

Dismiss

Cert.

of

was

entered.

Consultation,

ECF

(Mot.
No.

for

7-1.)

Memphis’ Motion to Extend Time does state, as Skinner alleges,
that Memphis was served on May 7, 2009.

However, as discussed

above, that statement is not proper proof of service or waiver
of service. See Fed. R. Civ. P. 4.

Compared to the repeated

interactions of the defendants in Datskow, West, and Auto Club
with the court and the plaintiffs over multiple months, Memphis’
actions do not justify an equitable waiver of service.
V.

Sanctions

Skinner seeks sanctions against Memphis on the ground that
Memphis

has

misrepresented

whether
17

it

was

properly

served.

(Sur-reply 4-5.)
were

made,

Procedure

and

Skinner has not shown that misrepresentations
Rule

requires

11(c)(2)
that

a

of

the

motion

separately from any other motion.

Federal
for

Rules

of

Civil

sanctions

be

made

The request for sanctions is

DENIED.
VI.

Conclusion

Memphis’s Motion to DISMISS is GRANTED.
against

Memphis

are

dismissed

without

Skinner’s claims

prejudice.

Skinner’s

request for Sanctions is DENIED.

So ordered this 30th day of September, 2012.

s/ Samuel H. Mays, Jr.______
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

18