Disability Rights of West Virginia et al v. Crouch
MEMORANDUM OPINION AND ORDER The Court GRANTS Defendant's 11 Motion to Dismiss and DENIES Plaintiff's 21 Motion for Award of Service Expenses and Attorney Fees; the Court further DISMISSES this case and DIRECTS the Clerk to remove this action from the Court's docket. Signed by Judge Thomas E. Johnston on 12/6/2017. (cc: counsel of record; any unrepresented party) (kp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
DISABILITY RIGHTS OF
WEST VIRGINIA, et al.,
CIVIL ACTION NO. 2:17-cv-01910
BILL CROUCH, in his official capacity
as Secretary of the Department of Health
and Human Services of the State of
MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendant’s Motion to Dismiss, (ECF No. 11), and Plaintiff
Disability Rights of West Virginia’s (“DRWV”) Motion for Award of Service Expenses and
Attorney Fees, (ECF No. 21). For the reasons discussed below, the Court GRANTS the motion
to dismiss, (ECF No. 11), and DENIES the motion for expenses and attorney’s fees, (ECF No.
This case arises out of a decision by the West Virginia Department of Health and Human
Services (“DHHR”) to hold in abeyance certain Medicaid fair hearings pending the outcome of T.
v. Crouch, which is currently before this Court. (ECF No. 1 at 1; see Civil Action No. 2:15-cv09655.)
Intellectual/Developmental Disability Home and Community Based Services waiver program
(“I/DD Waiver Program”) are challenging reductions in their benefits that began in 2015. DRWV
brought this action against Defendant, alleging that DHHR’s decision to hold certain hearings in
abeyance pending the underlying litigation challenging aspects of the I/DD Waiver Program is a
violation of federal law and regulations governing the state’s Medicaid program by failing to hold
recipients’ Medicaid fair hearings within the required period. (ECF No. 1 at 7–10 (citing 42
U.S.C. § 1396(a)(3), (8); 42 C.F.R §§ 431.220, 431.244(f), 435.930).) Because of these allegedly
unlawful actions, DRWV seeks injunctive and compensatory relief. (Id. at 10–11.)
Defendant filed the current Motion to Dismiss on June 5, 2017. (ECF No. 11.) DRWV
responded to the motion on June 8, 2017, (ECF No. 14), and DRWV filed its reply on June 15,
2017, (ECF No. 15). DRWV filed its Motion for Award of Service Expenses and Attorney Fees
on August 15, 2017, (ECF No. 21), and Defendant responded on August 29, 2017, (ECF No. 23).
Accordingly, the two motions are briefed and ripe for adjudication.
II. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 8(a), a complaint need only contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” See Erickson v.
Pardus, 551 U.S. 89, 93–94 (2007). The rule requires the plaintiff to allege sufficient facts,
which, if proven, would entitle him to relief under a cognizable legal claim. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 554–55 (2007). A motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of the complaint, and the factual allegations must be
taken as true and construed in the light most favorable to the plaintiff. See Randall v. United
States, 30 F.3d 518, 522 (4th Cir. 1994). Consequently, a motion to dismiss should be granted
only if, after accepting all well-pleaded allegations contained in the complaint as true, the plaintiff
fails to allege enough facts to state a cognizable legal claim that is plausible on its face. Twombly,
550 U.S. at 570.
“Factual allegations must be enough to raise a right to relief above the
speculative level[,]” and if a plaintiff does not “nudge” his claim “across the line from conceivable
to plausible[,]” then the complaint should be dismissed. Id. at 555, 570. “Conclusory allegations
in a complaint, if they stand alone, are a danger sign that the plaintiff is engaged in a fishing
expedition.” Migdal v. Rowe Price-Fleming Int’l Inc., 248 F.3d 321, 325 (4th Cir. 2001) (citing
DM Research v. Coll. of Am. Pathologists, 170 F.3d 53, 55 (1st Cir. 1999)).
The individuals on whose behalf DRWV sued are recipients of benefits under West
Virginia’s I/DD Waiver Program, which provides for qualified individuals with intellectual and
development disabilities an annual budget by which those recipients may purchase home and
community-based services. (See ECF No. 1 at 7 ¶¶ 29–30.) The Complaint states that West
Virginia’s Medicaid program must “provide Medicaid applicants and recipients with recourse to
an administrative fair hearing when Medicaid benefits are denied, reduced, or terminated, or when
a claim for medical assistance ‘is not acted upon with reasonable promptness.’” (Id. ¶ 31 (citing
42 U.S.C. § 1396a(a)(3); 42 C.F.R. § 431.220).) DHHR’s Board of Review (“BOR”) is the entity
in front of which I/DD Waiver Program recipients may seek a fair hearing under federal law, and
the Complaint notes that BOR must “‘take final administrative action’ on a fair hearing request
‘within 90 days’ of the date the fair hearing was requested.” (Id. at 8 ¶ 34 (citing 42 C.F.R. §
The Complaint alleges that “[s]tarting as late as August of 2016, BOR established a practice
of holding Medicaid fair hearings in abeyance pending any settlement, voluntary dismissal,
compromise, final decision by the Court, or becomes moot due to the expiration of the Appellant’s
current service year in the Michael T. litigation, Civil Action No.[ ]2:15-CV-09665.” (Id. ¶ 37
(internal quotation marks omitted).) DRWV claims that one I/DD Waiver Program recipient
requested a fair hearing but never received one and was never informed of BOR’s decision to hold
the hearings in abeyance. (Id. ¶ 38.) The organization also alleges that another recipient was
informed via telephone that his or her requested fair hearing was being held in abeyance. (Id. ¶
39.) Because of these actions, DRWV argues that program recipients were forced “to go without
hearings and final administrative decisions for a time extending beyond 90 days,” resulting in a
loss of “waiver benefits needed for long-term maintenance of their integrated living
arrangements.” (Id. at 9 ¶ 43.)
A. Motion to Dismiss
Defendant’s motion is premised on two grounds. First, Defendant argues that DRWV’s
equitable claims are moot given certain actions DHHR has taken since the Complaint was filed.
(See ECF No. 12 at 3.) Specifically, Defendant attaches to his motion an affidavit from Ms.
Cheryl Henson, BOR Chairman, noting that all I/DD Waiver Program recipients with Medicaid
fair hearings held in abeyance received letters notifying them that their hearing was scheduled for
a status conference to set a final hearing date. (See ECF No. 11-1.) Ms. Henson further provided
that “members of the I/DD Waiver program [who] have filed for a Medicaid fair hearing, and
whose case has not already been adjudicated, will have a final hearing scheduled in the immediate
future, unless he or she exercises his or her right to request a continuance of such hearing.” (Id.
at 2.) Second, Defendant avers that DRWV does not have standing to pursue the compensatory
or other monetary relief requested on behalf of the I/DD Waiver Program recipients because there
are no named individual plaintiffs in this case and the organization lacks representational standing.
(See ECF No. 12 at 4–5.) In terms of representational standing, Defendant states that DRWV
cannot meet the third prong of the Supreme Court’s test in Hunt v. Washington State Apple
Advertising Commission because “[t]he very nature of the relief sought in the Complaint is
individualized and will require participation by each and every such individual to determine the
appropriate alleged amounts owed to each individual and any alleged harm that each individual
suffered.” (Id. (citing 432 U.S. 333, 343 (1977)).)
In DRWV’s response to the motion, it argues that “Defendant’s summation of the issues at
large grossly oversimplifies the matters at controversy and the relief sought by DRWV through
the Complaint.”1 (ECF No. 14 at 2.) DRWV claims that the issues in this case are not moot as
Defendant suggests because DHHR’s voluntary cessation of conduct does not guarantee that the
alleged misconduct will not occur again in the future. (See id. at 3–4 (“[I]t is quite reasonable to
assume based on the increase in litigation activity involving the WV I/DD waiver program that
Plaintiff states that the following is at issue in its Complaint:
1) The violation of 42 U.S.C. § 1396(a)(8) and the Due Process Clause of the 14th Amendment.; 2)
The prevention of future Constitutional violations (i.e. The Defendant holding future Medicaid Fair
Hearings in abeyance); 3) Require the Defendant to develop specific policies and procedures to
implement the timeline required by federal law thereby ensuring that all Medicaid Fair Hearings
meet the reasonable promptness standard required by federal law.; 4) Immediately granting I/DD
waiver recipients, who did not receive a final administrative decision within 90 days, the relief they
sought in their fair hearing requests for the remainder of their budget year.; 5) Immediately granting
general compensatory relief in the form of the relief sought in requests for fair hearings for period
of time extending beyond their current budget year for services not provided or equivalent monetary
damages.; 6) Awarding reasonable attorney’s fees, as provided by 42 U.S.C. § 1988.; 7) Awarding
of costs and disbursements; and 8) Granting such other relief and further relief as the Court deems
equitable and just.
(ECF No. 14 at 2 (emphasis in original).)
new abeyance orders could be issued by the BOR.”).) Further, DRWV states that it is seeking a
claim pursuant to 42 U.S.C. § 1983 “to address any failure by Defendant to comply with the
reasonable promptness provision of the Medicaid Act,” which encompasses a private right of
action not mooted by DHHR’s change in practice. (See id. at 4–5; see also id. at 6 (“The violation
of the promptness period is the core injury here not the denial of the fair hearings.”).) Lastly,
DRWV argues that it has standing in the representational context because the damages suffered
and remedies sought are “common to the group,” meaning that the individually harmed I/DD
Waiver Program recipients do not need to participate or be named in this litigation. (See id. at 5–
6 (noting also that the organization itself “has been and continues to be injured by this suit”).)
Defendant’s reply contends that many of DRWV’s arguments are red herrings in the sense
that DRWV ignores the crux of Hunt’s third prong regarding the necessity of individual
participation in this suit based on the relief requested. (See ECF No. 15 at 1, 2 (“DRWV’s
argument can be summed up as follows: the case is not moot and the organization has standing
because Defendant could reinstate the abeyance orders at any time and there is case law that states
a § 1983 claim is the appropriate vehicle for an individual to pursue a private action for violation
of a Medicaid Act provision.”).) Defendant states that DRWV’s belief that DHHR may decide to
reinstate the abeyance orders sometime in the future is “completely speculative and not actionable
. . . .” (Id. at 2.) Defendant also contests DRWV’s discussion regarding its § 1983 claim, noting
that the main case cited in support of that discussion concerned “an individual recipient . . . who
was personally aggrieved . . . and, therefore, filed a personal action . . . to recover personal
damages.” (Id. at 3 (emphasis in original) (citing Doe v. Kidd, 501 F.3d 348 (4th Cir. 2007))
(explaining that the other cases cited by DRWV discussed similarly situated individual plaintiffs).)
Because no individuals are seeking relief in this lawsuit, Defendant avers that “DRWV, as an
organization, cannot pursue such claims pursuant to its alleged representational standing.” (See
id. at 4.)
It is well settled that “[f]ederal courts have no power to hear moot cases, and . . . a case can
become moot at any time . . . .” Brooks v. Vassar, 462 F.3d 341, 348 (4th Cir. 2006) (citing
Mellen v. Bunting, 327 F.3d 355, 363–64 (4th Cir. 2003)), cert. denied, 550 U.S. 934 (2007); see
also City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 288–89 (1982). One way in which
a case can become moot is by a change in factual circumstances if the change renders the issues in
the case no longer “live.” See Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 763
(4th Cir. 2011) (citations omitted); see also Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70
(1983) (“Federal courts lack jurisdiction to decide moot cases because their constitutional authority
extends only to actual cases or controversies.”).
“Generally speaking, one such [factual]
circumstance mooting a claim arises when the claimant receives the relief he or she sought to
obtain through the claim.” Simmons, 634 F.3d at 763 (alteration in original) (quoting Friedman’s,
Inc. v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002)). However, “[a] case is not moot . . . if a party
can demonstrate that the apparent absence of a live dispute is merely temporary abeyance of a
harm that is ‘capable of repetition, yet evading review.’” Brooks, 462 F.3d at 348 (quoting
Mellon, 327 F.3d at 364).
If a defendant voluntarily ceases challenged conduct, the court may choose nonetheless to
“exercise its power to enjoin the defendant from renewing the practice . . . .” City of Mesquite,
455 U.S. at 289. The Supreme Court has announced a “stringent” test for deciding whether a
defendant’s voluntary conduct is sufficient to moot a case:
A case might become moot if subsequent events made it absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur. The heavy
burden of persuading the court that the challenged conduct cannot reasonably be
expected to start up again lies with the party asserting mootness.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (alteration
omitted) (internal quotation marks omitted) (citations omitted); see also Wall v. Wade, 741 F.3d
492, 497 (4th Cir. 2014). The Fourth Circuit has held that this burden is met and “a governmental
entity’s change of policy renders a challenge moot when the governmental entity ‘has not asserted
its right to enforce [the challenged policy] at any future time.’” Porter v. Clarke, 852 F.3d 358,
360, 364 (4th Cir. 2017) (alteration in original) (quoting Telco Commc’ns, Inc. v. Carbaugh, 885
F.2d 1225, 1231 (4th Cir. 1989)).
Here, DRWV’s claims arose from DHHR’s decision to issue orders to hold certain
Medicaid fair hearings in abeyance. DRWV argues in its response that the abeyance orders are
not the crux of this action but rather the Complaint arises from BOR’s failure to comply with
federal law’s promptness period. However, the Court recognizes that DRWV filed this suit with
the aim of compelling DHHR to schedule Medicaid fair hearings being held in abeyance and that
this objective will be satisfied if BOR conducts those hearings. Defendant represents in his
motion and through Ms. Henson’s affidavit that all cases in which a recipient’s hearing was held
in abeyance were scheduled for a status conference to set a final hearing and that, therefore, all
members with a hearing held in abeyance “will have a final hearing scheduled in the immediate
future . . . .” (ECF No. 11-3 at 2; see also ECF No. 12 at 3.) Further, in a telephonic status
conference held by the Court on November 15, 2017, Defendant represented that there were no
hearings held in abeyance at that time based on actions taken by DHHR since the commencement
of this lawsuit. Based on this representation, DRWV agreed that its previously filed motion
seeking preliminary injunctive relief was moot. (See ECF No. 28.)
There has been no suggestion by Defendant in the briefing or during the telephonic status
conference that any hearings will be held in abeyance in the future. Thus, there is no reason to
believe that the challenged conduct will recur. See Friends of the Earth, Inc., 528 U.S. at 189;
see also Simmons, 634 F.3d at 763. Without ongoing conduct or any suspicion that previous
conduct will recur, the Court finds that DRWV’s requests for declaratory and injunctive relief
regarding DHHR’s former practices are now moot.
Defendant has met his burden in
demonstrating that this issue is no longer live insofar as it relates to the aforementioned relief, and
this Court will not exercise jurisdiction to determine the constitutionality or legality of the ceased
conduct. See Brooks, 462 F.3d at 468. This leaves for discussion the compensatory claims raised
by DRWV in its Complaint.
“To establish standing, a plaintiff must show: (1) an injury in fact; (2) a sufficient causal
connection between the injury and the conduct complained of; and (3) a likelihood that the injury
will be redressed by a favorable decision.” Wikimedia Found. v. NSA, 857 F.3d 193, 207 (4th
Cir. 2017) (citation omitted).
“The party invoking federal jurisdiction bears the burden of
establishing these elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). An
organization can allege standing under two distinct theories. See Md. Highways Contractors
Ass’n, Inc. v. Maryland, 933 F.2d 1246, 1250 (4th Cir.) [hereinafter MHCA, Inc.], cert. denied,
502 U.S. 939 (1991). First, the organization “may have standing in its own right to seek judicial
relief from injury to itself and to vindicate whatever rights and immunities the association itself
may enjoy.” Warth v. Seldin, 422 U.S. 490, 511 (1975). Alternatively, the organization “may
have standing as the representative of its members who have been harmed.” MCHA, Inc., 933
F.2d at 1250 (citing Hunt, 432 U.S. at 333; Warth, 422 U.S. at 511).
Thus, if an entity “lacks the ‘personal stake’ in the outcome of th[e] litigation essential to
its invocation of federal-court jurisdiction” or even if it is “not a traditional voluntary membership
organization . . . for it has no members at all,” the organization is not automatically precluded from
asserting the claims of its constituency. See Hunt, 432 U.S. at 341–44 (citations omitted). The
following elements are considered the “prerequisites to ‘associational standing:’”
(a) its members would otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization’s purpose; and (c)
neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.
Id. at 343; see also Am. Humanist Ass’n v. Md.-Nat’l Capital Park & Planning Comm’n, 874 F.3d
195, 203–04 (4th Cir. 2017).
Defendant argues in his motion that the damages claimed here are similar to those claimed
in the seminal case on representational standing, Warth v. Seldin, in that they “are not common to
the entire membership” and that any alleged injury suffered “is peculiar to the individual member
concerned, and both the fact and extent of injury would require individualized proof.” (ECF No.
12 at 4 (quoting 422 U.S. at 515).) As such, Defendant avers that DRWV cannot pursue the
damages borne by I/DD Waiver Program recipients because they are individualized and the relief
sought “will require participation by each and every such individual to determine the appropriate
alleged amounts owed to each individual and any alleged harm that each individual suffered.”
(Id. at 5.)
Although DRWV concedes that “the Complaint does ask for relief for these
individuals,” it disputes Defendant’s claim that it is necessary for the individuals to participate in
this suit. (See ECF No. 14 at 6–7 (“The necessary remedy here, sought through a § 1983 claim,
is common to the group.”).)
DRWV also contests Defendant’s representation that the
organization “cannot pursue the personal damages requested in the Complaint,” (ECF No. 12 at
5), because DRWV “has been and continues to be injured by this suit.” (See ECF No. 14 at 6
(noting the resources DRWV has expended throughout the course of this litigation and citing the
request for attorney’s fees and costs in the Complaint’s prayer for relief).)
While the injunctive and equitable relief has been dismissed as moot, DRWV’s
compensatory claims brought pursuant to 42 U.S.C. § 1983 remain. To determine whether
DRWV has standing to pursue these claims, the Court will assume, without deciding, that the first
two elements of representational standing are met and focus instead on the third element, which
the parties contest. (See ECF No. 12 at 4–5; ECF No. 14 at 5–6.) DRWV seeks the following
relief for these claims in its Complaint:
(5) Immediately granting I/DD Waiver recipients, who did not receive a final
administrative decision within 90 days, the relief they sought in their fair hearings
request for the remainder of their budget year;
(6) Immediately granting general compensatory relief in the form of the relief
sought in the requests for fair hearings for [a] period of time extending beyond their
current budget year for services not provided or equivalent monetary damages . . .
(ECF No. 1 at 11.) To determine what relief each I/DD Waiver Program recipient sought in their
fair hearings or to calculate the equivalent monetary value for those services would require
evidence unique to those individuals. This is unlike the situation in Hunt where the Supreme
Court noted that the third element favored the association because the claims did not require
“individualized proof” from the various apple producers represented. See 432 U.S. at 344. Here,
to grant the requested relief under § 1983, the Court would need particularized proof from affected
recipients, such as the following: their allocated budget and approved services for the previous
year, their budget and requested services for the current year, and the reconsideration and appeals
process they have undergone this year, including their individual requests to the BOR for a
Medicaid fair hearing currently held in abeyance.
The Court is unpersuaded by DRWV’s claim that “[t]he necessary remedy . . . is common
to the group.”2 (ECF No. 14 at 6.) While multiple individuals allegedly were denied a prompt
hearing—a common harm—determining their individual monetary relief is not a group exercise.
The damages alleged “are not common to the entire membership, nor shared by all in equal
degree.” Cf. Warth, 422 U.S. at 515–16. As Defendant notes, DRWV “has filed the abovecaptioned lawsuit in its own name, and has not identified any individuals in its pleadings
supposedly aggrieved by the allegations contained therein.” (ECF No. 12 at 2.) Because no
individuals are named plaintiffs to this suit, the Court is unable to determine the personal relief to
which they may be entitled. As such, it is inappropriate for the Court to allow DRWV to invoke
the judicial process on behalf of affected I/DD Waiver Program recipients as DRWV itself has no
standing to pursue their compensatory claims.
B. Motion for Award of Service Expenses and Attorney Fees
DRWV seeks an order awarding it $25.00 for service expenses and $1,232.50 for attorney’s
fees because Defendant refused to waive the summons in this case, without good cause, and
The Court similarly does not agree with and will not expand on DRWV’s claim that it has, in fact, alleged monetary
injury to itself in the form of attorney fees and costs. (See ECF No. 14 at 6.) Those expenses arise directly out of
the individual claims for monetary relief DRWV attempts to bring on behalf of the I/DD Waiver Program recipients.
If the Court allowed DRWV to assert standing on this argument alone, an organization could raise any claim on behalf
of its members, regardless of the individualized nature of the injuries alleged. The focus of the discussion must
remain on the monetary harm allegedly suffered by the individuals as a result of Defendant’s conduct.
ignored DRWV’s requests for payment of service fee. (See ECF No. 21 at 1–3.) In seeking these
amounts, DRWV relies on Federal Rule of Civil Procedure 4(d)(2). (Id. at 2–3.) In Defendant’s
response to the motion, he concedes “that DHHR refused to waive service of process in this matter
. . . .” (ECF No. 23 at 1.) Nonetheless, the response argues that Defendant, who is sued in his
official capacity as Secretary of DHHR, is considered a government agency for purposes of Rule
4(d) and is not subject to the rule’s waiver of service provisions. (See id. at 2–3.) DRWV did
not file a reply in support of its motion.
Federal Rule of Civil Procedure 4(d) provides, in pertinent part, the following:
(1) An individual, corporation, or association that is subject to service under Rule
4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the
summons. The plaintiff may notify such a defendant that an action has been
commenced and request that the defendant waive service of a summons.
(2) If a defendant located within the United States fails, without good cause, to
sign and return a waiver requested by a plaintiff located within the United
States, the court must impose on the defendant:
(A) the expenses later incurred in making service; and
(B) the reasonable expenses, including attorney’s fees, of any motion required
to collect those service expenses.
Fed. R. Civ. P. 4(d)(1), (2). Subsection (e) cited in Rule 4(d)(1) relates to individuals “in a judicial
district of the United States” while subsection (f) refers to individuals in a foreign country. See
Fed. R. Civ. P. 4(e), (f). Neither of those subsections applies to “a minor, an incompetent person,
or a person whose waiver has been filed.” See id. Further, subsection (h) explicitly references
“a domestic or foreign corporation, or a partnership or other unincorporated association that is
subject to suit under a common name . . . .” Fed. R. Civ. P. 4(h).
Thus, to be subject to the waiver provisions of Rule 4(d), a defendant must be an
individual—other than a minor, an incompetent person, or a person whose waiver has been filed—
or a corporation, partnership, or other association. See Fed. R. Civ. P. 4(d) advisory committee’s
note to 1993 amendment (“The request for waiver of service may be sent only to defendants subject
to service under subdivision (e), (f), or (h). The United States is not expected to waive service for
the reason that its mail receiving facilities are inadequate to assure that the notice is actually
received by the correct person in the Department of Justice. The same principle is applied to . . .
officers of the United States and to other governments and entities subject to service under
subdivision (j).”). Defendant here is a state government official sued in his official capacity.
(See ECF No. 1 at 6 ¶ 24 (“Defendant Crouch is sued only in his official capacity as the government
official with overall executive authority over DHHR . . . .”).) Rule 4(j) sets out the requirements
for service of government officials. See Fed. R. Civ. P. 4(j)(2); see also Chapman v. N.Y. State
Div. for Youth, 227 F.R.D. 175, 179–80 (N.D.N.Y. 2005) (noting that service upon employees of
state agencies is governed by Rule 4(j) when they are sued in their official capacity and that such
a government official is not subject to the waiver of service mandate in Rule 4(d)). As such,
Defendant was not required to waive service under Rule 4(d)(1). See Moore v. Hosemann, 591
F.3d 741, 747 (5th Cir. 2009) (“[A] state official sued in his official capacity is not subject to the
mandatory waiver-of-service provisions of Rule 4(d).”), cert. denied, 560 U.S. 904 (2010); see
also 4A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1092.1 (4th ed.
2017) (“Waiver of service may not be requested of . . . states, or local governments (governed by
Rule 4(j)) . . . . Rule 4(d) simply is not applicable to these categories of defendants.”).
Accordingly, the Court agrees with Defendant that he was not required to waive service and cannot
be ordered to reimburse DRWV for costs or attorney’s fees associated with either proper service
under Rule 4(j) or the filing of the current motion.
For the reasons set for above, the Court GRANTS Defendant’s Motion to Dismiss, (ECF
No. 11), and DENIES Plaintiff’s Motion for Award of Service Expenses and Attorney Fees, (ECF
No. 21). The Court further DISMISSES this case and DIRECTS the Clerk to remove this action
from the Court’s docket.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
December 6, 2017
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