Woodruff v. Thornsbury et al

Filing 46

MEMORANDUM OPINION AND ORDER denying defendant Michael Thornsbury's 22 MOTION to Dismiss 1 Complaint Due to Insufficient Service of Process; denying defendant Michael Thornsbury's 41 MOTION to Quash Plaintiff's Service of Proce ss and to Stay Deadlines Set Forth in the Court's 32 Order and Notice Until Such Time as a Ruling on the Effectiveness of Plaintiff's Service of Process Attempt is Issued. Signed by Judge John T. Copenhaver, Jr. on 12/18/2013. (cc: attys; any unrepresented parties) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

ROBERT WOODRUFF,
Plaintiff,
v.

Civil Action No. 2:13-24001

MICHAEL THORNSBURY, individually and
in his official capacity, and
JARROD FLETCHER, individually and
in his official capacity, and
STEVEN D. CANTERBURY, in his official
capacity as Administrator of the
West Virginia Supreme Court of Appeals, and
TROOPER BRANDON MOORE, individually and
in his official capacity, and
COLONEL JAY SMITHERS, in his official capacity
as Commander of the West Virginia State Police,
JEFF CLINE and
POLICE OFFICER NATHAN GLANDEN,
individually and in his official capacity, and
THE CITY OF GILBERT, WEST VIRGINIA and
COMMISSIONERS OF THE MINGO COUNTY COMMISSION,
in their official capacity
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are defendant Michael Thornsbury’s motions (1)
to dismiss due to insufficient service of process, filed October
25, 2013, and (2) to quash service of process, filed December 2,
2013.

I.

On September 30, 2013, plaintiff Robert Woodruff
instituted this action (“federal action”).

On October 5, 2013,

Mr. Woodruff’s process server, Benjamin Cisco, traveled to
what he believed to be Mr. Thornsbury’s residence.

At

approximately 5:55 p.m. on that date, Mr. Cisco served upon Mrs.
Dreama Thornsbury, Mr. Thornsbury’s spouse, the challenged process
and, additionally, process in Kimberly Woodruff v. Michael
Thornsbury, No. 13-C-1838, pending in the Circuit Court of Kanawha
County (“state action”).

The proof of service for the federal

action includes the following narrative:
Arrived at Thornsbury home at 5:55 on October 5, 2013.
Was greeted by Dreama Thornsbury at the door. I
introduced myself as Benjamin Cisco and tried to hand
her paperwork and I shouted “You have been served.” She
closed the door and I stated again “you have been
served.” I placed the paperwork in her mailbox attached
to the home and then exited the property.
(Ex. 1, Def.’s Mot. to Dism.).
On October 24, 2013, Mrs. Thornsbury executed an
affidavit stating as follows:
The below signing individual duly swears, under oath, to
the following:
1. That I live at 1717 4th Avenue, Williamson, West
Virginia.
2. That Mike Thornsbury has not lived at this address
since October 3, 2013.
2

3. That he has not stayed overnight at this residence or
used this residence as his residence since October 3,
2013.
4. That he has his own residence.
5. That, when Benjamin Cisco attempted to serve the
papers upon me on October 5, 2013, at 1717 West 4th
Avenue, Williamson, West Virginia, I told him that Mike
Thornsbury did not live here.
6. That Benjamin Cisco said he was serving the papers at
1717 West 4th Avenue, Williamson, West Virginia, because
it was Mike Thornsbury's last known address.
7. That Benjamin Cisco put the papers in my mailbox and
left.
8. That I reported the incident to the United States
Post Office and told them that Mike Thornsbury no longer
lived at 1717 West 4th Avenue, Williamson, West
Virginia.
(Ex. 2, Def.’s Mot. to Dism.).
Mr. Thornsbury now moves to dismiss or quash based upon
an insufficiency of service of process.

II.

A.

Governing Standard

Federal Rule of Civil Procedure 12(b)(5) permits a
defendant to seek dismissal in the event of an “insufficient
service of process.”

Fed. R. Civ. P. 12(b)(5).

3

Rule 4(e)

specifies an individual defendant within a judicial district in
the United States may be served by
(1) 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; or
(2) doing any of the following:
(A) delivering a copy of the summons and of
the complaint to the individual personally;
(B) leaving a copy of each at the individual's
dwelling or usual place of abode with someone
of suitable age and discretion who resides
there; or
(C) delivering a copy of each to an agent
authorized by appointment or by law to receive
service of process.
Fed. R. Civ. P. 4(e).
In this circuit, strict compliance with the technical
rules of service are more flexible when a defendant has actual
notice of the action instituted against him.

The principle is

illustrated by Karlsson v. Rabinowitz, 318 F.2d 666, 668 (4th Cir.
1963).

In Karlsson, the defendant owned a home in Maryland where

he and his family resided.
the home.

On July 5, 1962, the defendant left

He never intended to return, taking steps to

permanently establish residence and his livelihood in Phoenix,
Arizona.

He had previously contracted to buy a new home in

Phoenix and to sell the Maryland residence.

4

While staying temporarily in a Phoenix motel, his
spouse, children, and domestic worker remained in the Maryland
home to finish various move-related tasks and appear at the August
3, 1962, closing in Maryland using a deed already signed by the
defendant.

On July 25, 1962, process was served upon the

defendant by leaving a copy with his spouse at the Maryland
residence.

Following the scheduled closing, the spouse and

children departed Maryland, arriving in Phoenix on August 6, 1962.
The defendant received actual notice of the service of process.
The district court concluded that service was
insufficient.

It noted that the Maryland home did not qualify as

the defendant's dwelling or usual place of abode inasmuch as he
did not intend to return there.

The court of appeals disagreed,

reasoning as follows:
[A] comparative analysis of facts in other cases is not
particularly helpful in determining the question
presented here, [but] we are impressed by the reasoning
of the court in State ex rel. Merritt v. Heffernan, 142
Fla. 496, 195 So. 145, 127 A.L.R. 1263 (Fla. 1940). In
that case there were even less indicia of residence and
of permanency of abode and the defendant actually
maintained a permanent residence for himself and his
family in a distant state; but the Florida court,
relying upon the language of the Court in Earle v.
McVeigh, 91 U.S. 503, 23 L.Ed. 398 (1875), to the effect
that the real purpose of service of process is to give
notice to the defendant that he is answerable to the
claim of the plaintiff, attached primary significance to
the close family ties of man and wife coupled with the
existence of a family residence in holding that ‘* * *
although his permanent residence was in a distant state,
* * * his then place of abode was where his family was
living.’ (195 So. at 147.) There, as here, the defendant
5

actually received notice of the action and appeared
specially and moved to quash the return of service. The
court, obviously approving the liberal and just rule to
be later applied in Rovinski v. Rowe, supra, stated, ‘*
* * we think that justice has been done, therefore, we
affirm the judgment which we understand will result in
the trial of the original claim on its merits in the
Civil Court of Record.’ (195 So. at 148.)
Under the particular circumstances of this case and
applying the rule of liberal construction, we hold that
service of process on Rabinowitz was sufficient.
Karlsson v. Rabinowitz, 318 F.2d 666, 669 (4th Cir. 1963) (stating
also that “where actual notice of the commencement of the action
and the duty to defend has been received . . . , the provisions of
[former] Rule 4(d)(1) should be liberally construed to effectuate
service and uphold the jurisdiction of the court . . . .”); see
also Armco, Inc. v. Penrod–Stauffer Bldg. Sys., Inc., 733 F.2d
1087, 1089 (4th Cir. 1984); cf. Fields v. Norfolk and Southern Ry.
Co., 924 F. Supp.2d 702, 708 (S.D. W. Va. 2012) (“Although the
rule requires the summons to identify the parties, the Fourth
Circuit has recognized that noncompliance with Rule 4 does not
mandate dismissal where the necessary parties have received actual
notice of a suit and where they have not been prejudiced by the
technical defect.”); Federal Deposit Ins. Corp. v. Spartan Mining
Co., Inc., 96 F.R.D. 677, 682 (S.D. W. Va. 1983) (citing Karlsson,
318 F.2d at 668–69); (“[I]n Karlsson, . . . the court held that
substituted service . . . was sufficient to confer jurisdiction
where service was made at what defendant contended was no longer
his “‘dwelling house or usual place of abode.’” The court
6

emphasized the fact that the defendant had actual notice of the
commencement of the action.”); 3 Lucas Martin, Cyc. of Federal
Proc. § 11:48 (3d ed. elec. 2013) (“While the authorities are not
in accord as to what constitutes an absent defendant's ‘dwelling
house or usual place of abode,’ the test or guide is that where
actual notice of the commencement of the action and the duty to
defend is promptly received by the defendant, Rule 4(e)(2) should
be liberally construed to effectuate substituted personal service
and uphold jurisdiction of the court even though the defendant at
the time of service may be residing in another state with no
intention of returning.”)(citing Karlsson).

B.

Analysis

Mr. Thornsbury asserts that he was not served in
compliance with Rule 4(e).

He notes that he no longer lived at

the place where process was delivered.

Mr. Woodruff suggests that

the residence where service was attempted qualifies as Mr.
Thornsbury’s “usual place of abode” pursuant to Rule 4(e)(2)(B),
and that he has received the all-important actual notice of the
lawsuit.
In applying the rule of liberal construction set forth
in Karlsson, the court notes four material considerations.

First,

Mr. Cisco served process on Mrs. Thornsbury, a person of suitable
7

age and discretion who resided in the marital home.

Second, Mr.

Thornsbury lived at the residence until two or three days prior to
Mr. Cisco’s visit.

Third, Mr. Thornsbury has received actual

notice of this action inasmuch as he has sought dismissal.
Fourth, the quashing of service under these circumstances would
only result in delay and unnecessary expense.
Based upon these considerations, the court concludes,
consistent with Karlsson, that Mr. Thornsbury received sufficient
service of process.

It is, accordingly, ORDERED that the motions

(1) to dismiss due to insufficient service of process, and (2) to
quash service of process, be, and hereby are, denied.
The Clerk is directed to transmit copies of this written
opinion and order to all counsel of record and any unrepresented
parties.
ENTER: December 18, 2013
John T. Copenhaver, Jr.
United States District Judge

8