Montgomery v. Looney

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LUTHER STEVEN MONTGOMERY,
Plaintiff,
vs.
DARLENE LOONEY, et al.,
Defendants.
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CIVIL ACTION NO. 23-00131-TFM-B
REPORT AND RECOMMENDATION
This action is before the Court on Defendant City of Mobile’s
motion 	to 	dismiss 	Plaintiff 	Luther 	Steven 	Montgomery’s 	third
amended complaint (Doc. 46). 	The motion has been referred to the
undersigned Magistrate Judge for consideration and recommendation
pursuant 	to 	28 	U.S.C. 	§ 	636(b)(1). 	(See 	Doc. 	3). 	Upon
consideration 	of 	all 	matters 	presented, 	the 	undersigned
recommends, for the reasons stated herein, that Defendant’s motion
to dismiss be GRANTED as to dismissal under Federal Rules of Civil
Procedure 12(b)(5) and 4(m), and found MOOT as to dismissal under
Federal Rule of Civil Procedure 12(b)(6).
I. 	BACKGROUND
Plaintiff 	Luther 	Steven 	Montgomery 	(“Montgomery”), 	who 	is
proceeding without an attorney, commenced this action by filing a
complaint 	against 	“Officer 	Darlene 	Looney” 	on 	April 	14, 	2023.
(Doc. 	1). 	In 	the 	initial 	complaint, 	Montgomery 	identified
Defendant Looney as a “US Marshal,” he alleged that Looney caused
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him 	to 	“spend 	19 	days 	in 	jail” 	on 	“false 	charges” 	and 	seized 	his
money, and he claimed that his “4th and 8th Amendment rights were
violated.” 	(Id. at 2, 4, 6-7). 	On May 25, 2023, Montgomery paid
the filing fee for a civil action. 	(Doc. 7).
On 	June 	7, 	2023, 	Montgomery 	filed 	a 	first 	amended 	complaint
on his own initiative. 	(Doc. 8). 	The first amended complaint was
largely identical to the original complaint, except that it added
seven new Defendants,1 it identified Defendant Looney as a City of
Mobile police officer rather than a U.S. Marshal, and it attached
a police report narrative and a state court order. 	(See id.). 	On
June 	15, 	2023, 	the 	Court 	entered 	an 	order 	striking 	Montgomery’s
first 	amended 	complaint 	as 	an 	impermissible 	shotgun 	pleading 	and
directing 	him 	to 	replead. 	(Doc. 	10). 	In 	response, 	Montgomery
filed 	a 	second 	amended 	complaint 	on 	July 	31, 	2023, 	which 	was
similar 	to 	his 	prior 	complaints 	and 	failed 	to 	correct 	the 	noted
pleading deficiencies. 	(Doc. 12). 	Accordingly, the Court entered
another 	order 	on 	August 	14, 	2023, 	striking 	Montgomery’s 	second
amended complaint as a shotgun pleading and directing him to file
a 	third 	amended 	complaint. 	(Doc. 	14). 	The 	Court 	cautioned
Montgomery that he would receive no further opportunities to amend
in order to correct pleading deficiencies. 	(Id. at 15).
1 The Defendants named in the first amended complaint were Darlene
Looney, Kevin Nelson, Daniel Lawrence, Beau Bartel, Mobile Police
Department, 	Joshua 	Evans, 	Justin 	Washam, 	and 	“U.S. 	Marshalls.”
(Doc. 8 at 2-3).
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Montgomery 	filed 	a 	third 	amended 	complaint 	on 	September 	11,
2023, which is now his operative pleading. 	(Docs. 15, 15-1). 	In
his 	third 	amended 	complaint, 	Montgomery 	names 	the 	following
Defendants: 	Officer 	Darlene 	Looney 	of 	the 	Mobile 	Police
Department; 	State 	of 	Alabama 	Probation 	and 	Parole 	Officers 	Kevin
Nelson 	and 	Daniel 	Lawrence; 	Inspector 	Beau 	Bartel 	of 	the 	United
States 	Marshal 	Task 	Force; 	City 	of 	Mobile 	Canine 	Handlers 	Joshua
Evans 	and 	Justin 	Washam; 	and 	the 	City 	of 	Mobile. 	(Doc. 	15 	at 	2-
3). 	Montgomery 	alleges 	that 	he 	“was 	searched 	and 	arrested 	by
Officer Darlene Looney” on May 7, 2020,2 and “spent 19 days in jail
for false charges that she put on [him].” 	(Id. at 5). 	Montgomery
also 	asserts 	that 	Defendant 	Looney 	“[seized 	his] 	money.” 	(Id.).
Montgomery 	claims 	that 	his 	“4th 	and 	8th 	Amendment 	rights 	were
violated.” 	(Doc. 15-1 at 5).
In an attachment to his complaint form,3 Montgomery writes:
On 	May 	7, 	2020 	I 	Luther 	Steven 	Montgomery 	were 	pulled
over 	and 	snatched 	out 	of 	my 	car 	at 	the 	gas 	station 	in
front of apartments by the City of Mobile Canine Handlers
Joshua 	Evans 	and 	Justin 	Washam. 	As 	Washam 	and 	Evans
pulled me out Washam and Evans searched me and the car,
lifted 	my 	hood 	and 	trunk 	and 	didn’t 	find 	anything.
That’s 	when 	Evans 	and 	Washam 	took 	me 	back 	to 	my
girlfriend’s apartment. 	Darlene Looney, Inspector Beau
Bartel 	with 	the 	U.S. 	Marshals, 	Kevin 	Nelson 	and 	Daniel
2 	The 	police 	report 	narrative 	attached 	to 	Montgomery’s 	third
amended complaint indicates that the search and arrest occurred on
May 6, 2020. 	(See Doc. 15-1 at 3).
3 	Montgomery 	utilizes 	a 	complaint 	form 	titled 	“Pro 	Se 	1 	(Rev.
12/16) 	Complaint 	for 	a 	Civil 	Case” 	for 	portions 	of 	his 	third
amended complaint. 	(See Doc. 15 at 1-2, 4-5).
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Lawrence 	put 	her 	and 	my 	son 	out 	the 	house 	and 	begin
search 	her 	house. 	Inspector 	Beau 	Bartel, 	Daniel
Lawrence, 	came 	back 	downstairs 	and 	told 	my 	probation
officer 	they 	had 	to 	let 	me 	go. 	That’s 	when 	Darlene
Looney said “No she not letting me go because my mother
went and put complaints on them for searching her house
the 	previous 	day” 	at 	the 	attorney 	affairs, 	that’s 	when
Looney 	also 	stated 	she 	will 	be 	putting 	felonies 	on 	me
because that will be the only way I can be held at county
jail 	due 	to 	me 	being 	on 	state 	probation 	at 	that 	time.
Darlene Looney called a Mobile Police patrol officer to
transport 	me 	to 	the 	Mobile 	County 	Metro 	Jail 	because
that was out of the U.S. Marshals jurisdiction. 	I spent
19 days in Mobile Metro Jail.
I had to pay my attorney Michael Kaoui 1,500 dollars to
represent 	me 	due 	to 	my 	probation 	officer 	Kevin 	Nelson
and his supervisor Daniel Lawrence doing a home visit to
a 	address 	that 	is 	not 	mine 	and 	is 	not 	listed 	on 	my
paperwork. 	Officer Nelson has my correct address which
is 	422 	R.V. 	Brown 	Dr. 	This 	address 	has 	always 	been
listed 	as 	my 	primary 	address. 	The 	reason 	the 	U.S.
Marshals 	even 	came 	out 	in 	the 	first 	place 	is 	because
they 	knew 	I 	were 	on 	probation 	and 	they 	could 	use 	my
probation to get inside of my girlfriend Breannia Thomas
home due to my brother child’s mother going to district
attorney 	Coy 	Morgan 	lying 	telling 	him 	I 	had 	guns
pertaining 	to 	a 	case 	she 	had 	against 	my 	brother
Quinterious Williams. 	Looney also confiscated my money
and put it in evidence.
(Id. at 1-2 (alterations to spelling)).
On 	a 	separate 	attachment, 	Montgomery 	lists 	the 	names 	of
Nelson, Lawrence, Evans, Washam, and Bartel, and states:
My 	probation 	officer 	Kevin 	Nelson 	and 	his 	supervisor
came and did a illegal search with the defendants above
they ended up surrounding my vehicle at the entrance of
a 	gas 	station 	which 	was 	Beau 	Bartel, 	Joshua 	Evans, 	and
Justin Washam. 	They didn’t show me no search warrant to
proper 	cause 	I 	then 	were 	snatched 	out 	my 	car 	by 	Beau
Bartel 	and 	choked 	because 	he 	thought 	I 	swallowed
something. 	My 	car 	was 	searched 	and 	they 	didn’t 	find
anything. 	Beau Bartel put me in handcuffs. 	That’s when
Bartel, 	Evans, 	and 	Washam 	took 	me 	to 	my 	girlfriend
---
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apartment 	complex 	where 	they 	then 	performed 	a 	illegal
search 	on 	her 	apartment. 	My 	vehicle 	was 	left 	at 	the
store abandoned, no tow truck was called and no one came
and 	got 	my 	car. 	The 	five 	people 	I 	listed 	above 	along
with 	Darlene 	on 	the 	other 	page 	violated 	my 	Fourth
Amendment to the United States Constitution because they
did a unreasonable search and seizures.
(Id. at 6 (alterations to spelling)). 	For relief, Montgomery seeks
“3.5 million” in damages. 	(Doc. 15 at 5).
On May 22, 2024, Defendant City of Mobile (“City of Mobile”)
filed 	the 	instant 	motion 	to 	dismiss 	Montgomery’s 	third 	amended
complaint for insufficient service of process and failure to state
a claim upon which relief can be granted. 	(Doc. 46). 	Montgomery
filed 	a 	response 	in 	opposition 	(Doc. 	50), 	and 	the 	City 	of 	Mobile
filed a timely reply. 	(Doc. 51). 	Therefore, the City of Mobile’s
motion 	to 	dismiss 	has 	been 	fully 	briefed 	and 	is 	ripe 	for
resolution.
II. 	STANDARDS OF REVIEW
1. 	Rule 12(b)(5) – Insufficient Service of Process
Rule 	4 	of 	the 	Federal 	Rules 	of 	Civil 	Procedure 	sets 	out 	the
requirements 	for 	service 	of 	process. 	See 	Fed. 	R. 	Civ. 	P. 	4. 	If
a plaintiff fails to serve a defendant in accordance with Rule 4,
the defendant may move to dismiss the case for insufficient service
of process under Federal Rule of Civil Procedure 12(b)(5). 	Auto-
Owners 	Ins. 	Co. 	v. 	Smith, 	2019 	U.S. 	Dist. 	LEXIS 	195892, 	at 	*2,
2019 WL 5701294, at *1 (N.D. Ga. Apr. 9, 2019). 	“A Rule 12(b)(5)
motion is the proper vehicle for challenging the mode of delivery,
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the lack of delivery, or the timeliness of delivery of the summons
and complaint.” 	Smith v. Lifeline Animal Project, Inc., 2024 U.S.
Dist. LEXIS 55715, at *4-5, 2024 WL 1243022, at *2 (N.D. Ga. Feb.
16, 	2024) 	(quoting 	Wright 	& 	Miller, 	5B 	Fed. 	Prac. 	& 	Proc. 	Civ. 	§
1353 (4th ed.)).
In 	a 	Rule 	12(b)(5) 	motion, 	the 	defendant 	has 	the 	initial
burden 	of 	challenging 	the 	sufficiency 	of 	service 	by 	describing
with 	specificity 	how 	the 	service 	of 	process 	failed 	to 	meet 	the
procedural 	requirements 	of 	Rule 	4. 	Hollander 	v. 	Wolf, 	2009 	U.S.
Dist. LEXIS 101446, at *7, 2009 WL 3336012, at *3 (S.D. Fla. Oct.
14, 	2009). 	“Once 	the 	defendant 	carries 	that 	initial 	burden, 	the
burden 	shifts 	to 	the 	plaintiff 	to 	establish 	the 	validity 	of 	the
service 	on 	the 	defendant.” 	Lifeline 	Animal 	Project, 	2024 	U.S.
Dist. LEXIS 55715, at *5, 2024 WL 1243022, at *3. 	“If the plaintiff
can establish that service was proper, then the burden shifts back
to 	the 	defendant 	to 	bring 	strong 	and 	convincing 	evidence 	of
insufficient process.” 	Auto-Owners, 2019 U.S. Dist. LEXIS 195892,
at *2-3, 2019 WL 5701294, at *1 (quotation omitted).
“Service of process is a jurisdictional requirement: a court
lacks 	jurisdiction 	over 	the 	person 	of 	a 	defendant 	when 	the
defendant has not been served.” 	Pardazi v. Cullman Med. Ctr., 896
F.2d 1313, 1317 (11th Cir. 1990). 	Therefore, where a court finds
insufficient 	service, 	it 	is 	improper 	for 	the 	court 	to 	reach 	the
merits of the case and issue a dismissal with prejudice. 	Jackson
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v. 	Warden, 	FCC 	Coleman-USP, 	259 	F. 	App’x 	181, 	182-83 	(11th 	Cir.
2007) (per curiam).
2. 	Rule 12(b)(6) – Failure to State a Claim
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party
may move to dismiss a complaint for failure to state a claim upon
which 	relief 	can 	be 	granted. 	Fed. 	R. 	Civ. 	P. 	12(b)(6). 	“To
survive 	a 	[Rule 	12(b)(6)] 	motion 	to 	dismiss, 	a 	complaint 	must
contain 	sufficient 	factual 	matter, 	accepted 	as 	true, 	to 	‘state 	a
claim 	to 	relief 	that 	is 	plausible 	on 	its 	face.’” 	Ashcroft 	v.
Iqbal, 	556 	U.S. 	662, 	678 	(2009) 	(quoting 	Bell 	Atl. 	Corp. 	v.
Twombly, 	550 	U.S. 	544, 	570 	(2007)). 	“A 	claim 	has 	facial
plausibility when the plaintiff pleads factual content that allows
the 	court 	to 	draw 	the 	reasonable 	inference 	that 	the 	defendant 	is
liable for the misconduct alleged.” 	Id. 	This necessarily requires
that 	a 	plaintiff 	include 	factual 	allegations 	that 	plausibly
support 	each 	essential 	element 	of 	his 	claim. 	Randall 	v. 	Scott,
610 F.3d 701, 708 n.2 (11th Cir. 2010).
When 	evaluating 	a 	motion 	to 	dismiss 	under 	Rule 	12(b)(6), 	a
court 	“must 	accept 	the 	factual 	allegations 	in 	the 	complaint 	as
true 	and 	construe 	them 	in 	the 	light 	most 	favorable 	to 	the
plaintiff.” 	Almanza v. United Airlines, Inc., 851 F.3d 1060, 1066
(11th Cir. 2017). 	That said, “[l]egal conclusions without adequate
factual 	support 	are 	entitled 	to 	no 	assumption 	of 	truth.” 	Mamani
v. 	Berzain, 	654 	F.3d 	1148, 	1153 	(11th 	Cir. 	2011). 	A 	complaint
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does not need detailed factual allegations, but it “requires more
than 	labels 	and 	conclusions, 	and 	a 	formulaic 	recitation 	of 	the
elements of a cause of action will not do.” 	Twombly, 550 U.S. at
555.
3. 	Pro Se Litigation
“Pro se pleadings are held to a less stringent standard than
pleadings 	drafted 	by 	attorneys 	and 	will, 	therefore, 	be 	liberally
construed.” 	Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998) (per curiam). 	However, “this leniency does not give a
court 	license 	to 	serve 	as 	de 	facto 	counsel 	for 	a 	party, 	or 	to
rewrite 	an 	otherwise 	deficient 	pleading 	in 	order 	to 	sustain 	an
action.” 	Campbell 	v. 	Air 	Jamaica 	Ltd., 	760 	F.3d 	1165, 	1168-69
(11th Cir. 2014) (quotation omitted). 	Even a pro se litigant “is
subject 	to 	the 	relevant 	law 	and 	rules 	of 	court, 	including 	the
Federal Rules of Civil Procedure.” 	Moon v. Newsome, 863 F.2d 835,
837 (11th Cir. 1989).
III. DISCUSSION
The 	City 	of 	Mobile 	argues 	that 	the 	complaint 	against 	it 	is
due 	to 	be 	dismissed 	because 	Montgomery 	failed 	to 	timely 	and
“properly serve the City of Mobile despite several different orders
instructing 	him 	to 	do 	so.” 	(Doc. 	46 	at 	3). 	Specifically, 	the
City 	of 	Mobile 	states 	that 	Montgomery 	has 	not 	served 	“the 	City’s
chief executive or the City Clerk” in accordance with Federal Rule
of 	Civil 	Procedure 	4(j)(2) 	or 	Alabama 	Rule 	of 	Civil 	Procedure
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4(c)(8), and it further notes that Montgomery “has filed no proof
of 	service.” 	(Id.). 	In 	his 	response, 	Montgomery 	asks 	the 	Court
not 	to 	dismiss 	his 	case 	against 	the 	City 	of 	Mobile, 	but 	he 	does
not 	address 	the 	foregoing 	arguments 	or 	contend 	that 	he 	properly
served the City of Mobile. 	(Doc. 50).
The record reflects that Montgomery added the City of Mobile
as 	a 	Defendant 	when 	he 	filed 	his 	third 	amended 	complaint 	on
September 	11, 	2023. 	(See 	Docs. 	15, 	15-1). 	In 	an 	order 	dated
September 	21, 	2023, 	the 	Court 	informed 	Montgomery 	that 	he 	was
required to complete and file valid proof of service of process on
the 	City 	of 	Mobile 	on 	or 	before 	December 	11, 	2023. 	(Doc. 	16 	at
6); see Lindley v. City of Birmingham, Ala., 452 F. App’x 878, 880
(11th Cir. 2011) (per curiam) (“[W]hen an amended complaint names
a new defendant, a plaintiff has [90] days from the date on which
the 	amended 	complaint 	is 	filed 	to 	serve 	that 	defendant 	with
process.”). 	The Court also reminded Montgomery that he needed to
complete 	and 	submit 	a 	summons 	form 	for 	the 	City 	of 	Mobile 	to 	the
Clerk 	of 	Court 	for 	issuance, 	as 	he 	had 	done 	for 	the 	other
Defendants. 	(Doc. 16 at 6-7).
On December 4, 2023, a purported summons directed to the City
of 	Mobile 	and 	a 	partial 	copy 	of 	the 	third 	amended 	complaint 	were
returned 	to 	this 	Court. 	(Doc. 	22). 	It 	appears 	that 	Montgomery
attempted 	to 	mail 	these 	documents 	to 	the 	City 	of 	Mobile 	in 	an
effort to effectuate service. 	However, the purported summons did
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not 	bear 	this 	Court’s 	seal 	and 	was 	not 	signed 	by 	an 	authorized
Court 	employee, 	and 	a 	review 	of 	the 	docket 	confirmed 	that
Montgomery had not submitted a summons form for the City of Mobile
for 	issuance 	by 	the 	Clerk. 	In 	an 	order 	dated 	December 	6, 	2023,
the Court informed Montgomery that his apparent service attempt on
the City of Mobile was invalid. 	(Doc. 23 at 3). 	In consideration
of 	his 	pro 	se 	status, 	the 	Court 	sua 	sponte 	extended 	the 	time 	for
Montgomery to effect service of process on the City of Mobile and
ordered him to complete and file valid proof of service of process
on 	or 	before 	December 	29, 	2023. 	(Id.). 	On 	December 	8, 	2023,
Montgomery 	submitted 	a 	proposed 	summons 	directed 	to 	“City 	of
Mobile, PO box 1827, Mobile, AL 36633” to the Clerk of Court, and
the 	Clerk 	issued 	the 	summons. 	(Doc. 	24). 	Montgomery 	then
apparently 	attempted 	to 	serve 	the 	summons 	and 	third 	amended
complaint on the City of Mobile by certified mail. 	(See Docs. 32,
33). 	However, 	the 	service 	documents 	were 	returned 	to 	this 	Court
by 	the 	Mobile 	County 	Circuit 	Clerk 	on 	January 	2, 	2024, 	with 	no
indication 	that 	they 	had 	been 	delivered 	to 	the 	City 	of 	Mobile.
(See Doc. 33).
On 	March 	4, 	2024, 	the 	Court 	entered 	an 	order 	informing
Montgomery 	that 	his 	two 	previous 	attempts 	to 	serve 	the 	City 	of
Mobile had been made to incorrect addresses, and that the City of
Mobile 	had 	not 	been 	served. 	(Doc. 	36 	at 	2, 	5-6). 	In 	the 	order,
the Court instructed Montgomery on how to properly serve the City
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of 	Mobile 	and 	ordered 	him 	to 	complete 	and 	file 	valid 	proof 	of
service of process on or before April 5, 2024. 	(Id. at 6).
On March 8, 2024, Montgomery submitted a new proposed summons
directed to “City of Mobile, Attn: Legal Department, 205 Government
Street, 9th Floor South Tower, Mobile, AL 36633-1827” to the Clerk
of 	Court, 	and 	the 	Clerk 	issued 	the 	summons. 	(Doc. 	40 	at 	1). 	On
April 	5, 	2024, 	Montgomery 	wrote 	a 	letter 	to 	the 	Court 	asserting
that he had served all Defendants “accurately and properly.” 	(Doc.
43). 	However, 	the 	Court 	has 	received 	no 	proof 	of 	service 	on 	the
City of Mobile to date.
Because 	the 	City 	of 	Mobile 	is 	a 	municipal 	corporation,
Montgomery must serve it in accordance with Federal Rule of Civil
Procedure 	4(j)(2), 	which 	provides 	the 	following 	two 	methods 	for
perfecting 	service 	on 	a 	“state, 	a 	municipal 	corporation, 	or 	any
other 	state-created 	governmental 	organization 	that 	is 	subject 	to
suit”: 	(1) 	by 	“delivering 	a 	copy 	of 	the 	summons 	and 	of 	the
complaint 	to 	its 	chief 	executive 	officer;” 	or 	(2) 	by 	“serving 	a
copy 	of 	each 	in 	the 	manner 	prescribed 	by 	that 	state’s 	law 	for
serving 	a 	summons 	or 	like 	process 	on 	such 	a 	defendant.” 	Fed. 	R.
Civ. P. 4(j)(2)(A)-(B).
As 	noted 	supra, 	Montgomery 	apparently 	attempted 	to 	effect
service 	on 	the 	City 	of 	Mobile 	by 	certified 	mail. 	“[M]ailing 	or
certified 	mailing 	does 	not 	constitute 	‘delivery’ 	for 	purposes 	of
service of process.” 	Johnson v. Champions, 2013 U.S. Dist. LEXIS
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10791, 	at 	*3, 	2013 	WL 	275957, 	at 	*1 	(S.D. 	Ala. 	Jan. 	24, 	2013).
Thus, 	Montgomery 	has 	not 	perfected 	service 	on 	the 	City 	of 	Mobile
in accordance with Federal Rule 4(j)(2)(A). 	See Gilliam v. County
of Tarrant, 94 F. App’x 230 (5th Cir. 2004) (per curiam) (finding
that 	“the 	use 	of 	certified 	mail 	is 	not 	sufficient 	to 	constitute
‘delivering’ under Rule 4[(j)(2)(A)]”); Husner v. City of Buffalo,
172 	F.3d 	37 	(2d 	Cir. 	1999) 	(“Pursuant 	to 	Fed.R.Civ.P. 	4(j)(2),
service 	upon 	a 	municipal 	corporation 	may 	be 	accomplished 	by
personal 	delivery 	of 	the 	summons 	and 	complaint 	to 	the 	chief
executive officer. 	In the alternative, Rule 4(j)(2) provides for
service in the manner prescribed by the law of the state in which
the municipal corporation is located.”) (emphasis added).
Thus, 	the 	question 	becomes 	whether 	Montgomery 	has 	perfected
service 	in 	accordance 	with 	Alabama 	law 	as 	permitted 	by 	Federal
Rule 4(j)(2)(B). 	“Unlike federal law, Alabama law allows service
by certified mail.” 	Johnson, 2013 U.S. Dist. LEXIS 10791, at *3,
2013 	WL 	275957, 	at 	*1 	(citing 	Ala. 	R. 	Civ. 	P. 	4(i)(2)). 	A 	party
initiating 	service 	by 	certified 	mail 	must 	place 	a 	“copy 	of 	the
process and complaint or other document to be served in an envelope
and 	address 	the 	envelope 	to 	the 	person 	to 	be 	served 	with
instructions 	to 	forward.” 	Ala. 	R. 	Civ. 	P. 	4(i)(2)(B)(ii). 	“In
the case of an entity within the scope of one of the subdivisions
of [Alabama] Rule 4(c), the addressee shall be a person described
in the appropriate subdivision.” 	Id. 	For a municipal corporation
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such 	as 	the 	City 	of 	Mobile, 	which 	is 	within 	the 	scope 	of 	Alabama
Rule 	4(c)(8), 	the 	addressee 	must 	be 	“the 	chief 	executive 	officer
or 	the 	clerk, 	or 	other 	person 	designated 	by 	appointment 	or 	by
statute 	to 	receive 	service 	of 	process” 	for 	the 	municipal
corporation. 	Ala. 	R. 	Civ. 	P. 	4(c)(8); 	see 	Hamner 	v. 	Tuscaloosa
Cty. 	Sch. 	Sys., 	2019 	U.S. 	Dist. 	LEXIS 	114064, 	at 	*10, 	2019 	WL
3009599, 	at 	*4 	(N.D. 	Ala. 	July 	10, 	2019) 	(“Alabama 	law 	allows
service 	on 	governmental 	entities 	by 	serving 	(1) 	the 	CEO, 	(2) 	the
clerk, 	or 	(3) 	another 	person 	designated 	by 	appointment 	or 	by
statute 	to 	receive 	service 	of 	process.”) 	(citing 	Ala. 	R. 	Civ. 	P.
4(c)(8)).
The 	party 	must 	then 	“affix 	adequate 	postage 	and 	place 	the
sealed 	envelope 	in 	the 	United 	States 	mail 	as 	certified 	mail 	with
instructions 	to 	forward, 	return 	receipt 	requested, 	with
instructions 	to 	the 	delivering 	postal 	employee 	to 	show 	to 	whom
delivered, 	date 	of 	delivery, 	and 	address 	where 	delivered.” 	Ala.
R. Civ. P. 4(i)(2)(B)(ii). 	“The return receipt shall be addressed
to 	the 	clerk 	of 	the 	court 	issuing 	the 	process 	and 	shall 	identify
the case number of the case in which the pleading has been filed.”
Id. 	“Upon 	mailing, 	the 	. 	. 	. 	party 	shall 	immediately 	file 	with
the 	court 	an 	‘Affidavit 	of 	Certified 	Mailing 	of 	Process 	and
Complaint.’ 	That affidavit shall verify that a filed copy of the
process 	and 	complaint 	or 	other 	document 	to 	be 	served 	has 	been
mailed 	by 	certified 	mail 	in 	accordance 	with” 	Alabama 	Rule
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4(i)(2)(B)(ii). 	Id. 	Service by certified mail “is not effective
until delivery of the certified mailing ‘to the named addressee or
the 	addressee’s 	agent 	as 	evidenced 	by 	signature 	on 	the 	return
receipt.’” 	Johnson, 2013 U.S. Dist. LEXIS 10791, at *3-4, 2013 WL
275957, at *1 (quoting Ala. R. Civ. P. 4(i)(2)(C)); see Colvin v.
Brennan, 	2020 	U.S. 	Dist. 	LEXIS 	215914, 	at 	*7-8, 	2020 	WL 	7265934,
at *4 (M.D. Ala. Nov. 17, 2020) (finding that service by certified
mail was not effective under Alabama Rule 4(c)(8) “unless and until
[the 	plaintiff] 	receives 	a 	return 	receipt 	bearing 	[the
defendant’s] 	signature 	or 	the 	signature 	of 	an 	authorized 	Postal
Service agent”), report and recommendation adopted sub nom. Colvin
v. Dejoy, 2020 U.S. Dist. LEXIS 232300, 2020 WL 7265365 (M.D. Ala.
Dec. 10, 2020).
The 	City 	of 	Mobile 	is 	correct 	that 	Montgomery 	has 	failed 	to
show 	that 	he 	properly 	served 	it 	by 	certified 	mail 	in 	accordance
with 	Alabama 	Rule 	4(i)(2). 	Montgomery 	did 	not 	“immediately 	file
with 	the 	court 	an 	‘Affidavit 	of 	Certified 	Mailing 	of 	Process 	and
Complaint’” 	when 	he 	mailed 	process. 	See 	Ala. 	R. 	Civ. 	P.
4(i)(2)(B)(ii). 	Indeed, 	the 	docket 	shows 	that 	Montgomery 	has
failed 	to 	file 	any 	proof 	of 	service 	on 	the 	City 	of 	Mobile 	with
this 	Court. 	See 	Fed. 	R. 	Civ. 	P. 	4(l)(1) 	(“Unless 	service 	is
waived, 	proof 	of 	service 	must 	be 	made 	to 	the 	court.”). 	Although
there is a signed certified mail return receipt in the record, the
receipt is clearly associated with Montgomery’s initial attempt to
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serve 	an 	invalid 	summons, 	since 	it 	lists 	a 	date 	of 	delivery 	that
predates the issuance of a summons for the City of Mobile in this
case. 	(See 	Doc. 	38). 	Moreover, 	Montgomery 	has 	failed 	to 	show
that 	he 	addressed 	any 	envelope 	containing 	process 	to 	“the 	chief
executive 	officer 	or 	the 	clerk, 	or 	other 	person 	designated 	by
appointment 	or 	by 	statute 	to 	receive 	service 	of 	process” 	for 	the
City of Mobile. 	See Ala. R. Civ. P. 4(c)(8) & 4(i)(2)(B)(ii). 	On
the 	contrary, 	the 	record 	reflects 	that 	Montgomery 	addressed 	each
summons 	directly 	to 	the 	“City 	of 	Mobile” 	and/or 	to 	its 	“Legal
Department.” 	(Doc. 24 at 1; Doc. 38; Doc. 40 at 1). 	Montgomery’s
response to the City of Mobile’s motion to dismiss makes no attempt
to address the foregoing issues. 	(See Doc. 50). 	Thus, Montgomery
has 	failed 	to 	demonstrate 	that 	he 	has 	served 	the 	City 	of 	Mobile
with process in accordance with Federal Rule 4(j)(2).
The undersigned notes that “[u]pon a showing of insufficient
service 	of 	process, 	Fed. 	R. 	Civ. 	P. 	12(b)(5) 	provides 	district
courts 	with 	the 	authority 	to 	either 	dismiss 	the 	complaint 	or 	to
quash the service and require the plaintiff to re-attempt service
of process.” 	Developmental Techs., LLC v. Mitsui Chemicals, Inc.,
2019 	U.S. 	Dist. 	LEXIS 	36357, 	at 	*2, 	2019 	WL 	1082338, 	at 	*1 	(M.D.
Fla. Mar. 7, 2019) (quotation omitted). 	The undersigned also notes
that it is the plaintiff’s responsibility to have the summons and
complaint served within the time allowed by Federal Rule of Civil
Procedure 4(m). 	Federal Rule 4(m) provides that “[i]f a defendant
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is 	not 	served 	within 	90 	days 	after 	the 	complaint 	is 	filed, 	the
court 	— 	on 	motion 	or 	on 	its 	own 	after 	notice 	to 	the 	plaintiff 	—
must 	dismiss 	the 	action 	without 	prejudice 	against 	that 	defendant
or 	order 	that 	service 	be 	made 	within 	a 	specified 	time.” 	Fed. 	R.
Civ. P. 4(m). 	However, “if the plaintiff shows good cause for the
failure, 	the 	court 	must 	extend 	the 	time 	for 	service 	for 	an
appropriate period.” 	Id.
Good 	cause 	for 	failure 	to 	timely 	and 	properly 	serve 	a
defendant “exists only when some outside factor[,] such as reliance
on 	faulty 	advice, 	rather 	than 	inadvertence 	or 	negligence,
prevented 	service.” 	Lepone-Dempsey 	v. 	Carroll 	Cty. 	Comm’rs, 	476
F.3d 	1277, 	1281 	(11th 	Cir. 	2007) 	(quotation 	omitted). 	“Absent 	a
showing 	of 	good 	cause, 	the 	district 	court 	has 	the 	discretion 	to
extend 	the 	time 	for 	service 	of 	process.” 	Id. 	at 	1282. 	In
exercising 	this 	discretion, 	the 	court 	must 	consider 	whether 	any
other 	circumstances, 	such 	as 	the 	expiration 	of 	a 	statute 	of
limitations or the defendant evading service, warrant an extension
of time based on the facts of the case. 	Id.
Even after receiving instructions on how to complete service
and 	two 	Federal 	Rule 	4(m) 	extensions 	of 	time 	to 	complete 	service
from this Court, Montgomery has failed to demonstrate that he has
properly completed service on the City of Mobile. 	Montgomery has
made no apparent attempt to correct service even after the City of
Mobile’s motion notified him of the deficient service, nor has he
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requested 	additional 	time 	for 	service 	under 	Rule 	4(m). 	Further,
Montgomery 	has 	not 	shown 	that 	good 	cause 	exists 	to 	excuse 	his
failure to timely and properly serve the City of Mobile. 	Indeed,
it is evident that Montgomery’s failure to make proper service on
the 	City 	of 	Mobile 	is 	the 	result 	of 	his 	own 	negligence 	or
inadvertence and not based on some outside factor.
Accordingly, 	the 	undersigned 	submits 	that 	it 	is 	appropriate
for 	the 	Court 	to 	dismiss 	Montgomery’s 	complaint 	against 	the 	City
of 	Mobile 	without 	prejudice 	instead 	of 	affording 	Montgomery
additional time to serve the City of Mobile. 	As noted, Montgomery
has 	already 	received 	two 	Federal 	Rule 	4(m) 	extensions 	of 	time 	to
serve 	the 	City 	of 	Mobile 	but 	failed 	to 	make 	good 	use 	of 	those
extensions. 	He has not requested additional time for service under
Rule 4(m) in response to the present motion to dismiss, and it is
generally 	the 	plaintiff’s 	burden 	to 	show 	good 	cause 	for 	such
relief. 	See Fed. R. Civ. P. 4(m). 	No other circumstances warrant
an 	additional 	extension 	of 	the 	service 	period 	based 	on 	the 	facts
of 	this 	case. 	There 	is 	no 	suggestion 	that 	the 	City 	of 	Mobile 	is
evading 	service. 	And 	although 	the 	City 	of 	Mobile 	argues 	that
Montgomery’s ill-defined claims under 42 U.S.C. § 1983 are barred
by 	the 	applicable 	two-year 	statute 	of 	limitations, 	there 	is 	no
indication that dismissal of this action without prejudice against
the 	City 	of 	Mobile 	would 	prevent 	Montgomery 	from 	raising 	claims
against the City of Mobile that were not already time-barred.
---
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Accordingly, the Court should decline to provide any further
extensions of time for service under Federal Rule 4(m) and should
dismiss Montgomery’s complaint against the City of Mobile without
prejudice 	based 	on 	Montgomery’s 	failure 	to 	timely 	and 	properly
complete 	service 	of 	process 	on 	the 	City 	of 	Mobile. 	And 	because
insufficient service of process deprives the Court of jurisdiction
over 	the 	City 	of 	Mobile 	to 	adjudicate 	the 	merits 	of 	the 	claims
against 	it, 	the 	City 	of 	Mobile’s 	motion 	to 	dismiss 	is 	moot 	as 	to
dismissal for failure to state a claim under Federal Rule 12(b)(6).
See 	Hunter-Riley 	v. 	Pro. 	Collision, 	2021 	U.S. 	Dist. 	LEXIS 	39568,
at 	*1, 	2021 	WL 	798861, 	at 	*1 	(S.D. 	Ala. 	Mar. 	1, 	2021) 	(Moorer,
J.).
IV. 	CONCLUSION
For 	the 	reasons 	set 	forth 	above, 	the 	undersigned 	recommends
that 	the 	City 	of 	Mobile’s 	motion 	to 	dismiss 	(Doc. 	46) 	be 	GRANTED
as 	to 	dismissal 	under 	Federal 	Rules 	of 	Civil 	Procedure 	12(b)(5)
and 4(m), and found MOOT as to dismissal under Rule 12(b)(6), and
that 	this 	action 	be 	DISMISSED 	without 	prejudice 	against 	the 	City
of Mobile.
NOTICE OF RIGHT TO FILE OBJECTIONS
A 	copy 	of 	this 	report 	and 	recommendation 	shall 	be 	served 	on
all parties in the manner provided by law. 	Any party who objects
to this recommendation or anything in it must, within fourteen (14)
days of the date of service of this document, file specific written
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objections with the Clerk of this Court. 	See 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b); S.D. Ala. GenLR 72(c). 	The parties should
note 	that 	under 	Eleventh 	Circuit 	Rule 	3-1, 	“[a] 	party 	failing 	to
object 	to 	a 	magistrate 	judge’s 	findings 	or 	recommendations
contained 	in 	a 	report 	and 	recommendation 	in 	accordance 	with 	the
provisions 	of 	28 	U.S.C. 	§ 	636(b)(1) 	waives 	the 	right 	to 	challenge
on appeal the district court’s order based on unobjected-to factual
and legal conclusions if the party was informed of the time period
for objecting and the consequences on appeal for failing to object.
In the absence of a proper objection, however, the court may review
on appeal for plain error if necessary in the interests of justice.”
11th Cir. R. 3-1.
In 	order 	to 	be 	specific, 	an 	objection 	must 	identify 	the
specific place in the Magistrate Judge’s report and recommendation
where 	the 	disputed 	determination 	is 	found. 	An 	objection 	that
merely incorporates by reference or refers to the briefing before
the Magistrate Judge is not specific.
DONE this 19th day of July, 2024.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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