Hager v. Star Transport, Inc. et al
Filing
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ORDER granting Defendants' 4 MOTION to Dismiss; granting Defendants' 6 MOTION to Dismiss; denying as moot Defendants' 13 MOTION to Set Aside the scheduling order; directing that this case is dismissed without prejudice, and directs the Clerk to remove this case from the Court's active docket. Signed by Judge Thomas E. Johnston on 8/1/2012. (cc: attys; any unrepresented party) (tmh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
TOD M. HAGER,
Plaintiff,
v.
CIVIL ACTION NO. 2:11-cv-00618
STAR TRANSPORT, INC. et al.
Defendants.
MEMORANDUM OPINION ORDER
Pending before the Court are Defendant Star Transport’s and Defendant Antonio1 Kareem
Reaves’s motions to dismiss [Docket 4 & 6, respectively]. Also pending, is Defendants’ joint
motion to set aside the scheduling order [Docket 13]. For the reasons that follow, the Court
GRANTS Defendants’ motions to dismiss and DENIES AS MOOT their motion to set aside the
scheduling order.
I. BACKGROUND
The following facts are uncontroverted: On April 21, 2011, Plaintiff, a resident of West
Virginia, filed this personal injury lawsuit in the Circuit Court of Kanawha County, West Virginia.
On or about August 28, 2011, Defendant Star Transport, Inc. (“Star Transport”), an Illinois
corporation, received by mail two copies of Plaintiff’s complaint, each of which had a summons
attached. One summons was directed to Defendant Star Transport and the other to Defendant
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Defendant Reaves asserts that he is misidentified as “Antonia”in the style of this case and
that his first name is “Antonio.” (Docket 5 at 1.)
Antonio Reaves, a North Carolina resident. Defendant Star Transport’s representative, Chuck
Werry, received the complaints. Mr. Werry was not authorized to accept service for Defendant
Reaves. The Kanawha County Court docket indicates that no return of service was ever filed with
state court clerk’s office. (Docket 6-1.) Nor does the state court docket have an entry indicating
that the clerk of that court ever served or attempted to serve either Defendant. (Id.)
On September 13, 2011, Defendant Star Transport, Inc. filed its original Notice of Removal
(Docket 1) and, on September 19, 2011, filed its Amended Notice of Removal (Docket 3). On
September 20, 2011, both Defendants moved to dismiss this case pursuant to Fed. R. Civ. P. 12(b)(5)
alleging insufficient service of process (Docket 4 & 6).
Pursuant to S.D.W. Va. R. 7.1(a)(7), in this District a response to a motion must be filed
within fourteen days from the date of service of the motion. Plaintiff has not filed a response to the
Defendants’ motions to dismiss.
II. LEGAL STANDARDS
A party may move to dismiss an action for insufficient service of process. Fed. R. Civ. P.
12(b)(5). Where service of process occurred prior to removal to federal court, state law controls the
question of whether service was proper. Wolfe v. Green, 660 F. Supp.2d 738, 745-46 (S.D.W. Va.
2009) (Copenhaver, J.) (citing Lee v. City of Beaumont, 12 F.3d 933, 936–37 (9th Cir.1993)). After
removal, the Federal Rules of Civil Procedure govern. Fed.R.Civ.P. 81(c)(1).
It is a plaintiff’s burden to establish proper service of process. Wolfe, 660 F. Supp.2d at
745–46.
Where a plaintiff fails to respond to a motion to dismiss within the time period set forth by
the applicable procedural rules, a court may rule on the motion to dismiss “on the uncontroverted
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bases asserted therein.” Pueschel, 369 F.3d at 354; see also 5B Charles Alan Wright & Arthur
Miller, Federal Practice and Procedure § 1353 (3d ed. 2009).
III. DISCUSSION
Defendants challenge the timeliness, as well as the manner, of Plaintiff’s purported service
of process.
Whether Plaintiff’s purported service of process is legally sufficient implicates state and
federal procedural rules. Rule 4(k) of the West Virginia Rules of Civil Procedure provides:
(k) Time Limit for Service. If service of the summons and complaint is not made
upon a defendant within 120 days after the filing of the complaint, the court, upon
motion or on its own initiative after notice to the plaintiff, shall dismiss the action
without prejudice as to that defendant or direct that service be effected within a
specified time; provided that if the plaintiff shows good cause for the failure, the
court shall extend the time for service for an appropriate period.
Where, however, a defendant has not been served, service has not been perfected, or service
is defective, then federal law governs. Wallace v. Comm. Radiology, 2011 WL 4596694, No. 1:09cv-0511 (S.D.W.Va. Sept. 30, 2011); Fed.R.Civ.P. 81(c)(1). Pursuant to 28 U.S.C. § 1448, in cases
removed from state court to federal court
in which any one or more of the defendants has not been served with process or in
which the service has not been perfected prior to removal, or in which process served
proves to be defective, such process or service may be completed or new process
issued in the same manner as in cases originally filed in such district court.
The 120-day time period for service of process in a removal action runs from the date of the
removal—not the date that the state court complaint was originally filed.
Wallace v. Cmty.
Radiology, No. 1:09-0511, 2011 WL 4596694 (S.D.W. Va. Sept. 30, 2011) citing Motsinger v.
Flynt, 119 F.R.D. 373, 376–77 (M.D.N.C.1988); RDLG, LLC v. RPM Group, LLC, 2010 WL
6594916, *5–6 (W.D.N.C. 2010); see also G.G.G. Pizza, Inc. v. Domino's Pizza, Inc., 67 F.Supp.2d
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99, 102 (E.D.N.Y.1999); Eccles v. Nat’l Semiconductor Corp.,10 F. Supp.2d 514, 519 (D. Md.1998);
Russo v. Prudential Ins. Co., 116 F.R.D. 10, 12 (E.D. Pa.1986).
Defendant removed this case from state court to federal court on September 13, 2011.
(Docket 1.) Thus, Plaintiff was required to serve Defendants on or before January 11, 2012.
Plaintiff failed to file any response to Defendants’ motion to dismiss or to their motion to set aside
the scheduling order and, thus, failed to carry his burden in showing that service of process was
made.
The Court’s independent review of the record shows that Plaintiff failed to serve either
Defendant. The question of whether service of process on Defendant Star Transport, a foreign
corporation, was insufficient is governed by Rules (d)(7) and (8) of the West Virginia Rules of Civil
Procedure. These Rules provide in pertinent part:
(7) Foreign Corporations and Business Trusts Qualified to Do Business. Upon a
foreign corporation, including a business trust, which has qualified to do business in
the State, by delivering or mailing in accordance with paragraph (1) above a copy of
the summons and complaint as provided in Rule 4(d)(5).
(8) Foreign Corporations and Business Trusts Not Qualified to Do Business. Upon
a foreign corporation, including a business trust, which has not qualified to do
business in the State,
(A) by delivering or mailing in accordance with paragraph (1) above
a copy of the summons and complaint to any officer, director, trustee,
or agent of such corporation; or
(B) by delivering or mailing in accordance with paragraph (1) above copies
thereof to any agent or attorney in fact authorized by appointment or by
statute to receive or accept service in its behalf.
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The question of whether service of process on Defendant Antonio Reaves was sufficient is governed
by Rule 4(d)(1) of the West Virginia Rules of Civil Procedure. That provision states in pertinent part
that service on an individual may be accomplished by
(A) Delivering a copy of the summons and complaint to the individual personally;
or
(B) Delivering a copy of the summons and complaint at the individual’s dwelling
place or usual place of abode to a member of the individual’s family who is above
the age of sixteen (16) years and by advising such person of the purport of the
summons and complaint; or
(C) Delivering a copy of the summons and complaint to an agent or attorney–in–fact
authorized by appointment or statute to receive or accept service of the summons and
complaint in the individual’s behalf; or
(D) The clerk sending a copy of the summons and complaint to the individual to be
served by certified mail, return receipt requested, and delivery restricted to the
addressee; or
(E) The clerk sending a copy of the summons and complaint by first class mail,
postage prepaid, to the person to be served, together with two copies of a notice and
acknowledgment conforming substantially to Form 14 and a return envelope, postage
prepaid, addressed to the clerk.
Defendant Star Transport contends that service of process failed to comply with W. Va. R.
Civ. P. 4. because “they were not mailed by the Circuit Clerk,” “were not accompanied by the
required notice and acknowledgment forms,” and were not “forwarded by certified mail by the West
Virginia Secretary of State.” (Docket 5 at 4.) Defendant also contends that Plaintiff failed to
effectuate service within 120 days after filing of the complaint. (Id. at 5.)
Defendant Antonio Reaves contends that he has never been served. (Docket 6 at 1.)
The Court accepts Defendants’ uncontroverted assertions as true. Based on Defendants’
assertions and the Court’s independent review of the record, the Court FINDS that Plaintiff has
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failed to serve Defendant Star Transport and Defendant Antonio Reaves. The Court further FINDS
that based on Plaintiff’s failure to defend Defendants’ motions, Plaintiff has failed to prosecute this
case.
IV. CONCLUSION
Accordingly, the Court GRANTS Defendants’ motions to dismiss [Docket 4, 6] , DENIES
AS MOOT their motion to set aside the scheduling order [Docket 13], DISMISSES this case
WITHOUT PREJUDICE, and DIRECTS the Clerk to remove this case from the Court’s active
docket.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
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August 1, 2012
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