Rubins v. Tisdale et al
Filing
20
MEMORANDUM OPINION AND ORDER Granting Defendants' Rule 12(b) Motion to Dismiss re: 13 Motion to Dismiss for Lack of Jurisdiction. Party Charles Tisdale terminated, party Colonel Ferguson terminated. (Ordered by Judge Mary Lou Robinson on 10/15/2012) (awc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
DOUGLAS RUBINS,
$
$
PLAINTIFF,
$
$
VS.
CNIL ACTION CAUSE NUMBER
$
POLICE OFFICER CHARLES TISDALE.
$
et al.,
$
DEFENDANTS.
2:12-CV-118-J
$
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS' RULE 12(b) MOTION TO DISMISS
Before the Court is Defendants Amarillo Police Department Colonel Kenneth Ferguson and
Sargent Charles Tisdale's Rule l2(b)(5) motion, filed September 12,2012,to dismiss claims asserted
against them in this case because Plaintiff Douglas Rubins has failed to timely perfect personal service of process upon them.
so has
Plaintiff Rubins has not filed
a response to
this motion, and the time to do
expired. For the following reasons, Defendants' motion is granted.
Plaintiff Rubins
sues Defendants Ferguson and Tisdale alleging
violations of Rubins' Fourth
and Fourteenth Amendment rights, for which he seeks relief pursuant to 42 U.S.C. $1983.
Essentially, Plaintiff alleges he was the victim of a conspiracy to secure his malicious prosecution
and arrest in satisfaction of a vendetta by Amarillo Police Department Colonel Ferguson, all in the
absence of probable cause.
Plaintiff Rubins alleges that Defendant Ferguson, in
a conspiracy
with
others, maliciously instituted the arrest and criminal prosecution of the Plaintiff.
Both Defendants move for dismissal because of the Plaintiff
s
failure to secure proper service
of process upon them. When service of process is challenged, the serving party bears the burden of
proving its validity or to show good cause for failure to timely effect proper service. Carimi v. Royal
Carribean Cruise Line, Inc., 959 F.2d 1344 (sthCir. 1992); Winters v. Teledyne Movible Offshore,
Inc., 776F.2d 1304,1305 (5th Cir. 1985). A plaintiff must comply with the service requirements
of the federal rules. Norlockv. City of Garland,768F.2d 654,656 (5th Cir. 1985). Rule 4 of the
Federal Rules of Civil Procedure is the applicable rule. A litigant's pro se status does not excuse
him from compliance with the federal rules of procedure. United State v. Jenkins,780 F.2d 5l 8, 520
(5th Cir. 1986).
Federal Rule of Civil Procedure 4(e) requires service upon each defendant by delivering a
copy of the summons and the complaint to the individually personally, or by delivering a copy of the
summons and of the complaint to an agent authorized by appointment or by law to receive service
of process. Plaintiffls proofs of service upon both Defendants (Documents #7 and 8) show that
Plaintiffs purported service upon each ofthem was not accomplished in compliance with Rule 4(e).
Those proofs of service show that service was not made upon either Defendant Ferguson or Tisdale
personally. Defendants assertthat service was made upon atypist employed bythe Amarillo Police
Department. A police department typist is not a person authorized by law to receive service of
process. Further, Plaintiff has not shown that the person in question was an agent authorized by
appointment to receive service of process for either Defendant Ferguson or Defendant Tisdale.
For these reasons, all of Plaintiff Douglas Rubins' claims asserted in this case against
Defendants Kenneth Ferguson and Charles Tisdale are hereby dismissed without prejudice pursuant
to Rule l2(bX5) of the Federal Rules of Civil Procedure for failure to perfect service of process.
It is SO ORDERED.
/*(
Sisned this the
dav of
Octobet2012.
MARY
N
ATES DISTRICT JUDGE
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