Belcher et al v. Walz et al

Filing 9

OPINION AND ORDER granting 7 Motion to Dismiss, treated as a Motion to Quash, in which service of process on the defendants is quashed. Signed by Judge James P. Jones on 8/30/12. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
DOLLY BELCHER, ET AL.,
Plaintiffs,

v.
STEPHEN WALZ, ETC., ET AL.,
Defendants.

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Case No. 1:12CV00031
OPINION AND ORDER
By: James P. Jones
United States District Judge

T. Shea Cook, T. Shea Cook, PC, Richlands, Virginia, for Plaintiffs; Earle
Duncan Gretchell, Jr., Solicitor General of Virginia, Richmond, Virginia, and
Sarah J. Surber, Assistant Attorney General of Virginia, Richmond, Virginia, for
Defendants.
The defendants have asked the court to dismiss this action, asserting that the
plaintiffs have failed to properly serve them. After considering the defendants’
submissions, I have determined that the service of process in this case should be
quashed.
The defendants, the Director of the Virginia Department of Mines, Minerals
and Energy and the Chairman of the Virginia Gas and Oil Board, have asked the
court to dismiss the Amended Complaint under Federal Rule of Civil Procedure
12(b)(5). Rather than serve the defendants individually, the plaintiffs served a
copy of the Summons and Amended Complaint on the Attorney General of the

Commonwealth.

The plaintiffs argue this action was not effective service of

process, and the Amended Complaint should therefore be dismissed.
Rule 4 of the Federal Rules of Civil Procedure outlines the means by which
a party may effect service on an opposing party. The Rule specifies a number of
particular means of effecting service on individuals, including personal service,
Fed. R. Civ. P. 4(e)(2)(A), substituted service at the defendant’s usual abode, Fed.
R. Civ. P. 4(e)(2)(B), and service on a statutorily-defined agent, Fed. R. Civ. P.
4(e)(2)(C). In addition, Rule 4 provides that the plaintiffs may serve individuals by
“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.” Fed. R. Civ. P. 4(e)(1). Finally, Rule 4 specifies that service may be
made on a state government by (A) delivering a copy of the summons and of the
complaint to the state’s chief executive officer, or (B) by complying with the
manner of service prescribed by state law. Fed. R. Civ. P. 4(j)(2).
It is clear that the plaintiffs’ method of attempting to effect service on the
defendants in this case did not comply with the forms of service on individuals
outlined in Rule 4(e)(2). Neither of the defendants received any direct form of
service as contemplated by the Federal Rules of Civil Procedure. Although the
Rules do allow for service to be made according to the law of the state in which the
court is located, the plaintiffs failed to comply with the methods specified for
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service on individuals in the Commonwealth of Virginia. 1 Va. Code Ann. § 8.01296 (2007 & Supp. 2012).
Moreover, the plaintiffs’ attempt to serve the defendants did not satisfy the
requirements of Rule 4(j)(2) for service of process on state governments. The
plaintiffs served the Attorney General of the Commonwealth. The Governor is the
chief executive of Virginia’s state government. Va. Code Ann. § 2.2-103 (2007 &
Supp. 2012). The plaintiffs, therefore, did not satisfy Rule 4(j)(2)(A). State law
does allow for service to be made on the Attorney General, but only in the context
of claims brought pursuant to the Virginia Tort Claims Act. Va. Code Ann. § 8.01195.4 (2007 & Supp. 2012). That law does not generally authorize the Attorney
General as an agent who may receive service on behalf of other state officers. See
Jeffress v. Titius, 756 F. Supp. 255, 257 (W.D. Va. 1990).
Because the plaintiffs did not comply with federal or state law prescribing
service of process on individuals or on the state, they failed to effect proper service
on the defendants.
When a federal court grants a motion pursuant to Federal Rule of Civil
Procedure 12(b)(5), it may either dismiss the action or retain the action and quash
process, giving the plaintiff the opportunity to correct any deficiencies in service.

1

These methods include (1) personal service, (2) substituted service on a family
member at the defendant’s usual place of abode, and (3) posted service followed by
certified mail.
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When a defendant files a motion to dismiss under Federal Rule of Civil Procedure
12(b)(5), that motion will also be treated alternatively as a motion to quash
process. See, e.g., Haley v. Simmons, 529 F. 2d 78, 79 (8th Cir. 1976); Ngabo v.
Le Pain Quotidien, No. DKC 11-0096, 2011 WL 978654, at *2 (D. Md. Mar. 17,
2011); Grant-Brooks v. Nationscredit Home Equity Servs. Corp., No. CIV.A. 3:01CV-2327, 2002 WL 424566 (N.D. Tex. Mar. 15, 2002). Where a defect in service
does exist, it is in the court’s discretion whether the case should be dismissed or
whether the service should merely be quashed.
Generally, if it appears that effective service can be made and the delay
resulting from ineffective service has caused no prejudice to the defendant, the
court will quash the service rather than dismiss the action. “Where ‘the first
service of process is ineffective, a motion to dismiss should not be granted, but
rather the Court should treat the motion in the alternative, as one to quash the
service of process and the case should be retained on the docket pending effective
service.’” Ngabo, 2011 WL 978654 at *2 (quoting Vorhees v. Fischer & Krecke,
697 F. 2d 574, 576 (4th Cir. 1983)). The case should only be dismissed when there
is no reasonable likelihood the plaintiff will be able to achieve proper service on
the defendants. See Umbenhauer v. Woog, 969 F. 2d 25, 31 (3rd Cir. 1992).

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It appears in this case that it is reasonably likely the plaintiffs will be able to
achieve proper service on the defendants according to the methods prescribed by
Rule 4 of the Federal Rules of Civil Procedure.2
Accordingly, it is ORDERED that Defendants’ Motion to Dismiss (ECF
No. 7), treated as a Motion to Quash, is GRANTED, and the service of process on
the defendants is hereby quashed. 3

ENTER: August 30, 2012
/s/ James P. Jones
United States District Judge

2

Plaintiffs’ counsel has struggled to meet the procedural requirements in this case.
The original Complaint, which I dismissed sua sponte, lacked any statement alleging the
subject-matter jurisdiction of this court. After amending the Complaint, counsel failed to
effect proper service on the defendants as described in this Opinion. Finally, counsel did
not respond to the defendants’ Motion to Dismiss as required by the Local Rules of this
court. Further lapses by counsel may warrant sanctions.
3

The defendants have alternatively moved to dismiss the Amended Complaint for
failure to state a claim, but I will not consider that issue unless and until service is
properly effected.
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