Dunn v. Nicholas County, West Virginia County Commission et al
Filing
31
MEMORANDUM OPINION & ORDER denying the 4 MOTION to Dismiss for insufficient service of process. Signed by Judge John T. Copenhaver, Jr. on 6/22/2015. (cc: counsel of record; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
MITCHELL BENNETT DUNN
and ESTHER MAE GIBSON,
Plaintiffs,
v.
Civil Action No. 2:14-25532
NICHOLAS COUNTY, WEST VIRGINIA
COUNTY COMMISSION
d/b/a NICHOLAS COUNTY
SHERIFF’S DEPARTMENT,
and DEPUTY JOHN DOE #1
individually and in his
official capacity,
and DEPUTY JOHN DOE #2
individually and in his
official capacity,
and CITY OF SUMMERSVILLE, WV
d/b/a SUMMERSVILLE POLICE
DEPARTMENT,
and OFFICER B.J. DODRILL
individually and in his
official capacity,
Defendants.
MEMORANDUM OPINION & ORDER
Pending is the motion to dismiss filed on November 14,
2014 by the City of Summersville (the “City”) and Officer B.J.
Dodrill (collectively, the “moving defendants”).
I.
The plaintiffs, Mitchell Bennett Dunn and Esther Mae
Gibson, are residents of Nicholas County, West Virginia.
They
allege that members of the Nicholas County Sheriff’s Department
(including John Does 1 and 2) and Officer Dodrill of the
Summersville Police Department illegally entered their home
without a warrant on September 8, 2012, battered Dunn, and
forced Gibson to disrobe before male officers.
were both “taken into custody” at the scene.
Dunn and Gibson
Dunn was charged
with being a felon in possession of a firearm, with
“brandishing”, and with “obstruction.”
with obstruction.
Gibson, too, was charged
Dunn pled guilty to the obstruction charge in
December of 2012; the charge against Gibson was dismissed.
On September 8, 2014, the plaintiffs initiated this
suit, charging the defendants with battery, intentional
infliction of emotional distress, and violating rights protected
by the West Virginia Constitution.
They also assert a claim
under 42 U.S.C. § 1983 for violations of their rights under the
Fourth Amendment of the Federal constitution.
The City and Officer Dodrill move to dismiss under
Federal Rule of Civil Procedure 12(b)(5), arguing that they have
not been properly served with process.
In support of their
motion, the moving defendants attached the affidavit of Marsha
Querrey, a secretary for Chief Jay Nowak, the City’s Chief of
Police.
Ms. Querrey attests that “an unknown man hand-delivered
to [her] two copies of the Complaint and Summons in” this action
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on October 29, 2014; however, she further states that she is
“not the chief executive officer, mayor, city manager, recorder,
clerk, treasurer, or a member of the City of Summerville’s
council or of its board of commissioners,” is not “an officer,
director, governor, or chief executive officer of the
Summersville Police Department,” and is “not authorized to
accept service on behalf of” the City or Officer Dodrill.
The plaintiffs responded in opposition on November 26,
2014, attaching an affidavit made by their process server, Brett
Cabell.
Mr. Cabell attests that he arrived at the Summersville
Police Department on October 29, 2014, and informed a woman
seated at the front desk that he was “there to make service of
process on Officer Dodrill and the police department.”
He
further states that the woman “advised that she would accept the
documents,” identified herself as Marsha Querrey, and “stated
she was the Clerk.”
The plaintiffs maintain that Mr. Cabell was
entitled to rely in good faith on Ms. Querrey’s representation.
Alternatively, they urge that the moving defendants’ motion was
premature, because the 120-day window for serving process had
not yet expired at the time the motion to dismiss was filed.
The District Clerk thereafter reissued summonses for
the City and Officer Dodrill on December 11, 2014, but the
docket reflects no subsequent proof of service on either of the
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moving defendants.
The City, but not Officer Dodrill, answered
the plaintiffs’ complaint on January 20, 2015.
II.
When a defendant moves to dismiss under Rule 12(b)(5)
for “insufficient service of process,” the plaintiff bears the
burden of establishing that the contested service was in fact
sufficient.
See, e.g., Dickerson v. Napolitano, 604 F.3d 732,
752 (2d Cir. 2010); Homer v. Jones-Bey, 415 F.3d 748, 754 (7th
Cir. 2005); McCoy v. Norfolk So. Ry. Co., 858 F. Supp. 2d 639,
651-52 (S.D. W. Va. 2012).
“A signed return of service
constitutes prima facie evidence of valid service[.]”
Relational, LLC v. Hodges, 627 F.3d 668, 672 (7th Cir. 2010).
And because “a process server’s affidavit of service is entitled
to a presumption of correctness,” it may be rebutted “only by
‘strong and convincing’ evidence.”
Sikhs for Justice v. Badal,
736 F.3d 743, 746 (7th Cir. 2013) (Posner, J.) (quoting Hodges,
627 F.3d at 672).
Such evidence may be presented in affidavits
and other documentary evidence, as well as deposition or oral
testimony.
5B Charles Alan Wright, Arthur R. Miller, et al.,
Federal Practice & Procedure § 1353 (3d ed.).
Factual issues
presented by the parties’ conflicting evidence, if not entwined
with the merits of the case, are for the court to resolve.
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Id.;
see also Ballard v. PNC Fin. Servs. Grp., Inc., 620 F. Supp. 2d
733, 735 (S.D. W. Va. 2009).
If “the process gives the defendant actual notice of
the pendency of the action, the rules, in general, are entitled
to a liberal construction.
When there is actual notice, every
technical violation of the rule or failure of strict compliance
may not invalidate the service of process.”
Armco, Inc. v.
Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir.
1984); see also Karlsson v. Rabinowitz, 318 F.2d 666, 668 (4th
Cir. 1963) (“[W]here actual notice of the commencement of the
action and the duty to defend has been received by the one
served, the provisions of Rule 4(d)(1) should be liberally
construed[.]”); Sanderford v. Prudential Ins. Co. of Am., 902
F.2d 897, 900 (11th Cir. 1990) (Fed. R. Civ. P. 4 “is a flexible
rule that should be liberally construed so long as a party
receives sufficient notice of the complaint”) (quoting United
Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d
1371, 1382 (9th Cir. 1984)).
On the other hand, “the rules are
there to be followed, and plain requirements for the means of
effecting service of process may not be ignored,” particularly
“when the means employed engender[] . . . confusion” or leave
the parties served “without clear notice of the necessity to
respond.”
Armco, Inc., 733 F.2d at 1089.
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III.
As relevant here, the plaintiffs could have served
Officer Dodrill by delivering a copy of the summons and
complaint to him personally or to an “agent authorized by
appointment or law to receive service of process.”
See Fed. R.
Civ. P. 4(e)(2)(C); see also id. 4(e)(1) (providing for personal
service in compliance with state law) and W. Va. R. Civ. P.
4(d)(1)(C) (allowing service on an individual by delivering “a
copy of the summons and complaint to an agent . . . authorized
by appointment or statute to receive or accept service”).
And
they could have served the City by “delivering a copy of the
summons and of the complaint to its chief executive officer,”
Fed. R. Civ. P. 4(j)(A), or by delivering those documents to the
City’s “mayor, city manager, recorder, clerk, treasurer, [] any
member of its council or board of commissioners,” or an agent
authorized to receive service for one of those individuals, see
id. 4(j)(B) (providing for service in the manner prescribed by
state law) and W. Va. R. Civ. P. 4(d)(6)(A).
There’s no dispute that a copy of the summons and
complaint was delivered to Ms. Querrey, rather than to Officer
Dodrill or to the City’s mayor, city manager, recorder, clerk,
treasurer, or council members.
The question, then, is whether
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Ms. Querrey is an “agent” empowered by appointment or law to
accept service on behalf of Officer Dodrill or the City.
There’s a dispute about that which can’t be resolved on the
basis of the affidavits.
Ms. Querrey maintains that she is not
authorized to accept service.
Mr. Cabell attests that Ms.
Querrey identified herself as “the Clerk” and “advised that she
would accept” service on “Officer Dodrill and the police
department.”
But, whatever the truth may be, there’s little
doubt that both the City and Officer Dodrill ultimately received
the process, and with it sufficient notice of their duty to
defend.
Indeed, both the City and Officer Dodrill appeared by
counsel and jointly moved to dismiss approximately two weeks
after Mr. Cabell delivered process to Ms. Querrey at the police
station.
Quashing the service under these circumstances would
result only in delay and unnecessary expense.
See, e.g.,
Woodruff v. Thornsbury, No. 13-24001, 2013 WL 6670259, at *3-4
(S.D. W. Va. Dec. 18, 2013) (Copenhaver, J.) (denying Rule
12(b)(5) motion where defendant “received actual notice” and
“sought dismissal”).
Accordingly, it is ORDERED that the moving
defendants’ motion to dismiss for insufficient service of
process be, and hereby is, denied.
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The Clerk is directed to transmit copies of this
written opinion and order to all counsel of record and any
unrepresented parties.
DATED: June 22, 2015
John T. Copenhaver, Jr.
United States District Judge
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