Montgomery v. Looney

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LUTHER STEVEN MONTGOMERY, 	*
*
Plaintiff, 	*
*
vs. 	* CIVIL ACTION NO. 23-00131-TFM-B
*
DARLENE LOONEY, et al., 	*
*
Defendants. 	*
REPORT AND RECOMMENDATION
This action is before the Court on review.1 	For the reasons
set forth below, the undersigned recommends that Plaintiff Luther
Steven 	Montgomery’s 	claims 	against 	Defendants 	Kevin 	Nelson 	and
Justin 	Washam 	be 	DISMISSED 	without 	prejudice 	for 	lack 	of 	service
of process pursuant to Federal Rule of Civil Procedure 4(m).
I. 	BACKGROUND
On 	April 	14, 	2023, 	Plaintiff 	Luther 	Steven 	Montgomery
(“Montgomery”), 	who 	is 	proceeding 	without 	an 	attorney, 	commenced
this action by filing a complaint against Defendant Darlene Looney
(“Looney”). 	(Doc. 1). 	On May 25, 2023, Montgomery paid the filing
and administrative fees for a civil action. 	(Doc. 7). 	On June 7,
2023, 	Montgomery 	filed 	a 	first 	amended 	complaint 	against 	Looney
1 Pursuant to 28 U.S.C. § 636(b)(1), this action has been referred
to 	the 	undersigned 	Magistrate 	Judge 	for 	consideration 	and
disposition 	or 	recommendation 	on 	all 	pretrial 	matters 	as 	may 	be
appropriate. 	(Doc. 3).
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and 	several 	additional 	Defendants, 	including 	Kevin 	Nelson
(“Nelson”), Daniel Lawrence (“Lawrence”), Beau Bartel (“Bartel”),
Joshua 	Evans 	(“Evans”), 	and 	Justin 	Washam 	(“Washam”). 	(Doc. 	8).
A summons for each Defendant named in the first amended complaint
was issued and given to Montgomery for service. 	(Doc. 9).
On 	June 	15, 	2023, 	Montgomery’s 	first 	amended 	complaint 	was
stricken 	as 	an 	impermissible 	shotgun 	pleading. 	(Doc. 	10).
Montgomery 	filed 	a 	second 	amended 	complaint 	on 	July 	31, 	2023.
(Doc. 	12). 	On 	August 	14, 	2023, 	Montgomery’s 	second 	amended
complaint 	was 	stricken 	as 	a 	shotgun 	pleading. 	(Doc. 	14). 	On
September 	11, 	2023, 	Montgomery 	filed 	a 	third 	amended 	complaint
against 	Defendants 	Looney, 	Nelson, 	Lawrence, 	Bartel, 	Evans,
Washam, 	and 	the 	City 	of 	Mobile. 	(Doc. 	15). 	The 	third 	amended
complaint is Montgomery’s operative pleading in this case.
In 	an 	order 	dated 	September 	21, 	2023, 	the 	Court 	noted 	that
Montgomery had not served Looney, Nelson, Lawrence, Bartel, Evans,
and Washam within the 90-day time limit set forth in Federal Rule
of 	Civil 	Procedure 	4(m). 	(Doc. 	16 	at 	6). 	In 	consideration 	of
Montgomery’s pro se status, the Court sua sponte extended the time
for Montgomery to complete service of process on those Defendants
under 	Rule 	4(m). 	(Id.). 	Specifically, 	the 	Court 	ordered
Montgomery to complete and file valid proof of service of process
on Looney, Nelson, Lawrence, Bartel, Evans, and Washam by November
---
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6, 2023. 	(Id.).
On November 8, 2023, Montgomery filed a motion requesting an
extension 	of 	time 	to 	complete 	service. 	(Doc. 	17). 	Although 	the
Court 	noted 	that 	Montgomery’s 	extension 	request 	was 	“wholly
unsupported,” 	it 	granted 	Montgomery 	an 	extension 	of 	time 	“out 	of
an abundance of caution” and ordered him to complete and file valid
proof 	of 	service 	of 	process 	on 	Looney, 	Nelson, 	Lawrence, 	Bartel,
Evans, and Washam by November 20, 2023. 	(Doc. 18).
Montgomery then made various filings attempting to show that
he 	had 	completed 	service 	of 	process. 	(See 	Docs. 	19, 	20, 	21, 	25,
32). 	However, in an order dated March 4, 2024, the Court informed
Montgomery that “[n]o defendant ha[d] been properly served.” 	(Doc.
36 	at 	1, 	3). 	Because 	Montgomery 	was 	“proceeding 	without 	the
assistance 	of 	a 	lawyer” 	and 	was 	apparently 	“trying 	to 	meet 	the
deadlines 	and 	comply 	with 	the 	Court’s 	orders,” 	the 	Court 	granted
him “a final opportunity to properly serve the named defendants.”
(Id. 	at 	3). 	Specifically, 	the 	Court 	ordered 	Montgomery 	“to
complete 	and 	file 	valid 	proof 	of 	service 	of 	process 	on 	the
defendants on or before April 5, 2024.” 	(Id. at 6). 	Additionally,
the Court informed Montgomery of the proper procedures for serving
the 	various 	types 	of 	Defendants 	in 	this 	case, 	and 	it 	warned
Montgomery 	that 	“failure 	to 	complete 	and 	file 	valid 	proof 	of
service on a defendant on or before the applicable deadline [would]
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result 	in 	the 	dismissal 	of 	the 	action 	against 	that 	defendant
pursuant to Federal Rule of Civil Procedure 4(m).” 	(Id. at 4-6).
In May 2024, Defendants Bartel, Looney, Evans, Lawrence, and
the 	City 	of 	Mobile 	filed 	motions 	to 	dismiss 	Montgomery’s 	third
amended complaint. 	(Docs. 44, 46). 	The two remaining Defendants,
Nelson and Washam, have not appeared in this action, and the docket
does not reflect that Montgomery has perfected service of process
on Nelson and Washam.
II. 	DISCUSSION
Because Montgomery paid the filing fee and is not proceeding
in forma pauperis, he is responsible for timely serving process on
the Defendants. 	See, e.g., Lepone-Dempsey v. Carroll Cty. Comm’rs,
476 	F.3d 	1277, 	1280–81 	(11th 	Cir. 	2007) 	(“A 	plaintiff 	is
responsible 	for 	serving 	the 	defendant 	with 	a 	summons 	and 	the
complaint within the time allowed under Rule 4(m).”); D’alessandro
v. Lane, 2022 U.S. Dist. LEXIS 168925, at *6, 2022 WL 4305605, at
*2 	(M.D. 	Fla. 	Sept. 	19, 	2022) 	(“Because 	Plaintiff 	paid 	the 	full
filing 	fee 	and 	is 	not 	proceeding 	as 	a 	pauper, 	he 	is 	responsible
for service of process.”).
Federal Rule of Civil Procedure 4(m) provides: “If a defendant
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
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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 	“exists 	only 	when 	some 	outside 	factor, 	such 	as
reliance on faulty advice, rather than inadvertence or negligence,
prevented 	service.” 	Lepone-Dempsey, 	476 	F.3d 	at 	1281 	(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.
As 	noted 	above, 	Montgomery 	failed 	to 	serve 	Nelson 	or 	Washam
within 	ninety 	days 	after 	the 	filing 	of 	the 	first 	amended
complaint.2 	The 	Court 	then 	afforded 	Montgomery 	three 	extensions
of time to complete service on Nelson and Washam and provided him
with 	instructions 	on 	how 	to 	properly 	serve 	them, 	but 	the 	record
reflects that Montgomery still has not effected service of process
2 The time limit for service “provided by Rule 4(m) is not restarted
by the filing of an amended complaint except as to those defendants
newly added in the amended complaint.” 	Bolden v. City of Topeka,
441 F.3d 1129, 1148 (10th Cir. 2006).
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on Nelson3 or Washam.4
3 	Montgomery 	twice 	filed 	certified 	mail 	return 	receipts 	for
mailings addressed to Kevin Nelson, but they have no signature, no
date of delivery, and no indication that anyone accepted the mail.
(Docs. 	37, 	42). 	Therefore, 	Montgomery 	has 	failed 	to 	demonstrate
that 	he 	completed 	service 	of 	process 	on 	Defendant 	Nelson. 	See
Fuqua v. Turner, 996 F.3d 1140, 1155 (11th Cir. 2021) (“Service by
certified mail . . . requires the addressee or his authorized agent
to sign the return receipt.”); Golson v. Pineda, 693 F. App’x 850,
851 	(11th 	Cir. 	2017) 	(per 	curiam) 	(finding 	that 	plaintiff 	failed
to demonstrate proper service under the Alabama rules because there
was no signature on the return receipt); Ala. R. Civ. P. 4(i)(2)(C)
(“Service by certified mail shall be deemed complete and the time
for 	answering 	shall 	run 	from 	the 	date 	of 	delivery 	to 	the 	named
addressee 	or 	the 	addressee’s 	agent 	as 	evidenced 	by 	signature 	on
the return receipt.”).
4 On March 7, 2024, Montgomery filed a return receipt for a mailing
addressed 	to: 	“K9 	Handler 	Justin 	Washam, 	2460 	Government 	St,
Mobile, AL 36606.” 	(Doc. 39). 	The certified mail return receipt
is signed and lists a delivery date of November 27, 2023, but the
signature is illegible, and the “Agent” and “Addressee” boxes next
to the signature line are not checked. 	(See id.).
As relevant here, Federal Rule of Civil Procedure 4(e) provides
that service on an individual “can be perfected by complying with
Alabama 	service 	rules.” 	Johnson 	v. 	Champions, 	2013 	U.S. 	Dist.
LEXIS 10791, at *2, 2013 WL 275957, at *1 (S.D. Ala. Jan. 24, 2013)
(citing 	Fed. 	R. 	Civ. 	P. 	4(e)(1)). 	“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)). 	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)). 	If 	someone
other 	than 	the 	defendant 	has 	signed 	for 	the 	certified 	mail,
“service is good only if the signatory constitutes the defendant’s
‘agent,’ 	that 	is, 	‘a 	person 	or 	entity 	specifically 	authorized 	by
the addressee to receive the addressee’s mail and to deliver that
mail to the addressee.’” 	U.S. Bank Nat. Ass’n v. Turquoise Props.
Gulf, 	Inc., 	2010 	U.S. 	Dist. 	LEXIS 	80365, 	at 	*9, 	2010 	WL 	3155495,
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Accordingly, the undersigned submits that Montgomery’s claims
against 	Nelson 	and 	Washam 	should 	be 	dismissed 	sua 	sponte 	for
failure to serve these Defendants. 	Montgomery has failed to file
any 	valid 	proof 	of 	service 	on 	Nelson 	or 	Washam 	with 	this 	Court.
See 	Fed. 	R. 	Civ. 	P. 	4(l)(1) 	(“Unless 	service 	is 	waived, 	proof 	of
service must be made to the court.”). 	Thus, there is no evidence
that Montgomery successfully served Nelson or Washam either before
or after the extended service deadline of April 5, 2024. 	Notably,
this 	action 	has 	been 	pending 	against 	Nelson 	and 	Washam 	for 	more
at *2 (S.D. Ala. Aug. 5, 2010) (citing Ala. R. Civ. P. 4(i)(2)(C)).
Alabama Rule 4(i)(2)(C) “does not provide that a mere signature on
a 	return 	receipt 	constitutes 	prima 	facie 	evidence 	of 	agency 	or
authority 	to 	accept 	service 	as 	part 	of 	that 	agency.” 	Premier
Health Mgmt., Inc. v. Sherling, 100 So. 3d 561, 568 (Ala. Civ. App.
2012). 	Rather, 	“unless 	an 	agency 	relationship 	and 	written 	or
specific 	authority 	is 	noted 	thereon, 	a 	return 	receipt 	reflects
only 	that 	the 	person 	who 	signed 	the 	receipt 	accepted 	delivery 	of
the 	process 	at 	the 	address 	and 	on 	the 	date 	and 	time 	specified.”
Id.
Here, 	it 	appears 	that 	the 	mailing 	was 	addressed 	to 	Defendant
Washam at Mobile Police Department Headquarters but was not signed
for 	by 	Washam. 	Instead, 	the 	certified 	mail 	return 	receipt 	bears
a signature that is illegible (but does not appear to be Washam’s).
(See Doc. 39). 	Also, while the return receipt has check boxes to
allow 	the 	recipient 	to 	acknowledge 	that 	he 	or 	she 	is 	the
“Addressee” 	or 	an 	“Agent” 	for 	the 	addressee, 	both 	of 	those 	boxes
are blank. 	(See id.). 	At best, the return receipt indicates that
an 	individual 	at 	Mobile 	Police 	Department 	Headquarters 	received
the 	summons 	and 	complaint. 	However, 	there 	is 	no 	evidence 	from
which 	this 	Court 	can 	determine 	the 	identity 	of 	the 	signer 	or
whether 	he 	or 	she 	was 	authorized 	to 	receive 	and 	deliver 	Washam’s
mail. 	Thus, 	the 	return 	receipt 	is 	not 	sufficient 	to 	demonstrate
delivery of the summons and complaint to Washam or his authorized
agent, and as a result, Montgomery has not demonstrated that Washam
was served with process.
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than 	fourteen 	months. 	Moreover, 	despite 	his 	pro 	se 	status,
Montgomery 	cannot 	claim 	to 	be 	ignorant 	of 	the 	proper 	procedures
for 	serving 	Nelson 	and 	Washam, 	since 	the 	Court 	provided 	him 	with
instructions on how to serve them. 	Montgomery has had ample time
and 	opportunities 	to 	perfect 	service 	of 	process 	on 	Nelson 	and
Washam, 	but 	he 	has 	repeatedly 	squandered 	his 	opportunities 	by
failing 	to 	diligently 	follow 	the 	proper 	procedures 	for 	effecting
and proving service of process on Nelson and Washam. 	Accordingly,
the 	undersigned 	concludes 	that 	dismissal 	of 	Montgomery’s 	action
against Nelson and Washam under Rule 4(m) is warranted.
III. CONCLUSION
For 	the 	reasons 	set 	forth 	above, 	the 	undersigned 	recommends
that 	Montgomery’s 	claims 	against 	Defendants 	Nelson 	and 	Washam 	be
DISMISSED without prejudice for lack of service of process pursuant
to Federal Rule of Civil Procedure 4(m).5
5 Rule 	4(m) 	requires 	the 	Court 	to 	provide 	Montgomery 	with 	notice
prior 	to 	dismissing 	his 	claims. 	See 	Fed. 	R. 	Civ. 	P. 	4(m).
Accordingly, 	the 	instant 	report 	and 	recommendation 	serves 	as
notice 	to 	Montgomery 	that 	the 	Court 	is 	considering 	dismissal 	of
his 	claims 	against 	Defendants 	Nelson 	and 	Washam 	under 	Rule 	4(m).
See 	Martin 	v. 	Citimortgage, 	2010 	U.S. 	Dist. 	LEXIS 	88447, 	at 	*7,
2010 WL 3418320, at *2 (N.D. Ga. Aug. 3, 2010) (“The undersigned’s
Report 	and 	Recommendation 	serves 	as 	notice 	to 	Plaintiff 	that 	the
District Court is contemplating dismissing Promortgage under Rule
4(m).”), report and recommendation adopted, 2010 U.S. Dist. LEXIS
88677, 	2010 	WL 	3418322 	(N.D. 	Ga. 	Aug. 	25, 	2010). 	If 	Montgomery
seeks 	to 	avoid 	dismissal 	of 	his 	claims 	against 	Defendants 	Nelson
and 	Washam, 	he 	may 	file 	objections 	to 	this 	report 	and
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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
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
recommendation in which he either shows that Defendants Nelson and
Washam were timely served or “shows good cause for the failure” to
serve them.
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the Magistrate Judge is not specific.
DONE this 8th day of August, 2024.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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