Cherry v. Van Meter et al

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
RONALD CHERRY 	PLAINTIFF
v. 	Case No. 4:25-cv-4023
JOHN VAN METER, et al. 	DEFENDANTS
ORDER
Before the Court is the Report and Recommendation filed by Spencer G. Singleton,
United States Magistrate Judge for the Western District of Arkansas. 	ECF No. 63. 	Judge
Singleton recommends that Separate Defendant Double H. Burger Company, LLC d/b/a
Whataburger #475’s Motion to Dismiss be granted and Plaintiff’s claims against this entity be
dismissed without prejudice. 	Plaintiff has responded to the Report and Recommendation by
filing two documents: 	(1) Motion to Reconsider Dismissal of Defendant Double H. Burger
Company, LLC (ECF No. 65); and (2) a Motion to Vacate and Reconsider Dismissal of
Defendant Double H. Burger Company, LLC, and Motion in Opposition to Defendant’s Motion
to Dismiss, With Supporting Brief (ECF No. 69). 	The Court will treat both documents as
Plaintiff’s objections to the Report and Recommendation. 	The Court finds the matter ripe for
consideration.
I. BACKGROUND
Plaintiff, representing himself in this matter, filed this action pursuant to 42 U.S.C.
§ 1983, alleging that Defendants violated his constitutional rights and committed acts of
negligence, assault, and battery. 	The issue the Court addresses today is whether Plaintiff
properly served Double H. Burger Company, LLC d/b/a Whataburger #475 (“Double H.
Burger”). 	On April 8, 2025, Plaintiff served the complaint on Manager Penny Cannon, a
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managerial employee of the Whataburger on State Line Avenue in Texarkana, Arkansas. 	ECF
No. 4, pp. 5-6. 	The franchise owner of the Whataburger on State Line Avenue is Double H.
Burger Company, LLC (“Double H. Burger”), a limited liability company organized under the
laws of the state of Texas. ECF No. 55, ¶ 3. According to Jason Hablinski, a manager of Double
H. Burger, no employee of the Whataburger franchise on State Line Avenue is an officer,
managing agent, general agent, or any other agent authorized to accept service of process for
Double H. Burger. ECF No. 55, ¶ 6. Mr. Hablinski maintains that no officer, managing agent,
or any other agent authorized to receive service of process on behalf of Double H. Burger has
been served with any process in this matter. 	ECF No. 55, ¶ 7. 	Double H. Burger has filed a
Motion to Dismiss, arguing that it has not been properly served. ECF No. 55. Magistrate Judge
Singleton recommends that the motion be granted and that all claims against Double H. Burger
be dismissed without prejudice. ECF No. 63.
II. STANDARD OF REVIEW
The Court may designate a magistrate judge to hear pre- and post-trial matters and to
submit to the Court proposed findings of fact and recommendations for disposition. 	28 U.S.C.
§ 636(b)(1). Within fourteen days of receipt of a magistrate judge’s report and recommendation,
“a 	party 	may 	serve 	and 	file 	specific 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations.” 	Fed. 	R. 	Civ. P. 	72(b)(2); 	accord 	Local 	Rule 72.1(VIII)(C). 	After
conducting an appropriate review of the report and recommendation, the Court may then “accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge . . . or recommit the matter to the magistrate judge with instructions.” 	28 U.S.C. §
636(b)(1).
“[T]he specific standard of review depends, in the first instance, upon whether or not a
party has objected to portions of the report and recommendation.” 	Anderson v. Evangelical
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Lutheran Good Samaritan Soc’y, 308 F. Supp. 3d 1011, 1015 (N.D. Iowa 2018). 	Generally,
“objections must be timely and specific” to trigger de novo review. Thompson v. Nix, 897 F.2d
356, 358-59 (8th Cir. 1990). 	However, the Court may, in its discretion, conduct a de novo
review of any issue in a report and recommendation. Thomas v. Arn, 474 U.S. 140, 154 (1985).
The Court applies a liberal construction when determining whether pro se objections are specific.
Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995). 	Here, Plaintiff has filed timely and
specific objections, and thus the Court will conduct a de novo review.
III. DISCUSSION
To serve a corporation or partnership, Federal Rule of Civil Procedure 4 provides that a
plaintiff may: (1) use any method of service allowed in the state where the district court is
located or where service is made; or (2) effect service by delivering a copy of the summons and
complaint “to an officer, a managing or general agent, or any other agent authorized . . . to
receive service of process and—if the agent is one authorized by statute and the statute so
requires—by also mailing a copy of each to the defendant.” 	Fed. R. Civ. P. 4(h). 	Under
Arkansas Rule of Civil Procedure 4, service on a limited liability company shall be on its
registered agent for service of process or the agent’s secretary or assistant; a manager or the
manager’s assistant or secretary; a member in which management is vested or that member’s
secretary or assistant; a managing or general agent of the limited liability company or that
agent’s secretary or assistant; or any agent authorized by appointment or by law to receive
service of process. Ark. R. Civ. P. 4(f)(6). If a defendant is not served within ninety days after
the complaint is filed, the Court “must dismiss the action without prejudice against that
defendant.” Fed. R. Civ. P. 4(m).
Plaintiff confirms that Peggy Cannon, a manager at Whataburger on State Line Avenue,
was served with the complaint. Plaintiff, in his objections, argues that Ms. Cannon represented
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herself as a manager or agent, and thus she had apparent authority to accept service. 	ECF No.
65, p. 2. 	However, Plaintiff offers no facts to support this argument. 	Nothing in the record
suggests that Ms. Cannon represented herself as a manager or agent of Double H. Burger, the
legal entity that Plaintiff was required to serve. 	Plaintiff has not served the complaint on any
officer or agent of Double H. Burger. 	Instead, Plaintiff served a managerial employee of
Whataburger on State Line Avenue, who is not authorized to accept service on behalf of Double
H. Burger. 	Thus, the Court agrees with Magistrate Judge Singleton that Double H. Burger was
not properly served and finds that all claims against Double H. Burger should be dismissed
pursuant to Federal Rule of Civil Procedure 4(m).
Plaintiff notes that he did not receive a copy of the Motion to Dismiss filed by Double H.
Burger and thus did not respond to the motion. 	The Court notes that the certificate of service
states that Plaintiff was served with a copy of the Motion to Dismiss via electronic filing. ECF
No. 55. 	However, because Plaintiff is representing himself, he cannot be served via electronic
filing and must be served by regular mail. 	Nevertheless, upon de novo review, the Court has
considered Plaintiff’s arguments in his objections (ECF Nos. 65, 69) as to why Double H.
Burger’s Motion to Dismiss should be denied. These arguments, however, are futile because the
record clearly demonstrates that no agent or officer of Double H. Burger has been served.
Accordingly, the Court must dismiss all claims against Double H. Burger.
IV. CONCLUSION
Upon de novo review of the Report and Recommendation, and for the reasons discussed
above, the Court finds that Plaintiff has offered neither fact nor law which would cause the Court
to deviate from Judge Singleton’s Report and Recommendation. Therefore, the Court overrules
Plaintiff’s objections and adopts the Report and Recommendation (ECF No. 63) in toto.
Plaintiff’s claims against Double H. Burger, LLC d/b/a Whataburger #475 are DISMISSED
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WITHOUT PREJUDICE. 	Further, Plaintiff’s Motion to Reconsider Dismissal of Defendant
Double H. Burger Company, LLC (ECF No. 65) and Motion to Vacate and Reconsider
Dismissal of Defendant Double H. Burger Company, LLC (ECF No. 69) are DENIED.
IT IS SO ORDERED, this 13th day of May, 2026.
/s/ Susan O. Hickey
Susan O. Hickey
Senior United States District Judge
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