Leblanc v. MIS Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ALLISON KATHLEEN LEBLANC, )
)
Plaintiff, )
)
vs. ) CIV A. NO. 24-0209-KD-MU
)
MIS INC., et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
This action is before the Court on Defendant MIS Inc.’s motion to dismiss or, in
the alternative, to quash purported service of process of Plaintiff’s complaint upon it.
(Doc. 11). Plaintiff has filed an out-of-time response to this motion (Doc. 34), and MIS
filed a timely reply prior to Plaintiff’s response (Doc. 28). In the interest of fairness, the
Court has elected to consider the arguments made by Plaintiff in her response, even
though it is due to be stricken as untimely. For the reasons set forth below, the
undersigned Magistrate Judge recommends that MIS’s motion to dismiss or, in the
alternative, to quash purported service of process of Plaintiff’s complaint be GRANTED
and that purported service of Defendant MIS Inc. be QUASHED. The undersigned
further recommends that, in light of this finding, Plaintiff be given thirty (30) days from
the date the District Court enters its order on this recommendation to make proper
service of her amended complaint1 on MIS Inc. or face dismissal of her claims against
MIS.
1 In its Report and Recommendation on the motion to dismiss filed by co-defendants
Mack and Herring, the undersigned has recommended that the district court grant the
motion to dismiss without prejudice and with leave to file a second amended complaint.
If Plaintiff elects to file a second amended complaint curing the deficiencies in her
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I. Facts of Purported Service
Plaintiff filed her original complaint in this action on June 25, 2024 and filed an
amended complaint on July 19, 2024. (Docs. 1 and 6). Summons to MIS was issued by
the Clerk of Court on July 19, 2024. (Doc. 7). Defendant’s name and address listed on
the summons was: “MIS, INC, c/o Attorney Brian Britt, PO Box 1138, Fairhope,
Alabama 36533.” (Id., PageID. 74). On August 2, 2024, Plaintiff filed a Proof of Service
showing that the Summons for MIS Inc. was sent by certified mail to “attorney Brian Britt
representative of MIS, INC.” (Doc. 9-1, PageID. 85). Plaintiff also filed a green card
reflecting that the certified mail addressed to MIS, INC, c/o Brian Britt, PO Box 1138,
Fairhope, AL 36533 was signed for by Kathryn Sparks on July 22, 2024. (Id., PageID.
84).
Brian Britt is an attorney for MIS in a separate, unrelated lawsuit. (Doc. 11,
PageID. 95). According to MIS, Britt is not an officer, partner, a managing or general
agent, or any other agent authorized by appointment or by law to receive service of
process on behalf of MIS. (Id.). Kathryn Sparks is Britt’s receptionist and is not now and
never has been an officer, partner, a managing or general agent for service of process
for MIS, or an agent authorized by Mr. Britt to accept service of process on behalf of
MIS as Mr. Britt himself is not an authorized agent. (Id.). Plaintiff admits in her response
that she served the complaint on Britt because MIS had instructed her (presumably in
regard to the separate, unrelated case) to send all correspondence to Britt. (Doc. 34,
PageID. 326). Plaintiff has attached a purported text message in which she claims that
amended complaint, she should serve the second amended complaint on Defendant
MIS Inc., rather than the current amended complaint because, as to MIS Inc., it is also
an impermissible shotgun pleading.
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MIS “expressly directed the Plaintiff to send the complaint to Mr. Britt.” The Court’s
review, however, shows that the text message 1) does not reveal the parties thereto,
and 2) simply shows that one party told the other party to “refer all your questions to my
attorney Bryan Britt.” (Doc. 34-1, PageID. 330).
In its motion, filed pursuant to Rules 12(b)(2), 12(b)(5), and 4(h)(1) of the Federal
Rules of Civil Procedure, MIS alleges that dismissal of the complaint or quashing of
service is appropriate because Plaintiff has failed to properly perfect service on MIS.
MIS further asserts that the alleged service of process was insufficient in law to give the
Court personal jurisdiction over MIS.
II. STANDARD OF REVIEW
MIS has filed its motion to dismiss pursuant to Federal Rules of Civil Procedure
12(b)(2) for lack of personal jurisdiction and 12(b)(5) for insufficient service of process.
As United States District Court Judge L. Scott Coogler of the Northern District of
Alabama recently observed:
A Rule 12(b)(4) or 12(b)(5) motion to dismiss challenges the
court’s personal jurisdiction over a defendant for insufficient
process and insufficient service of process respectively. To
invoke the court’s personal jurisdiction on a defendant
requires service of process; so, if a plaintiff fails to properly
serve a defendant according to one of the methods of
service in Rule 4, the court will, on a timely motion, dismiss
all claims against the defendant. And, when a defendant
challenges service of process, the plaintiff bears the
burden of showing that the defendant was properly
served under Rule 4.
Bridges v. Poe, No. 6:19-CV-01399-LSC, 2020 WL 3207278, at *1 (N.D. Ala. June 15,
2020) (internal citations omitted) (emphasis added). “Valid service of process is an
indispensable prerequisite to the assertion of personal jurisdiction over a defendant.”
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Hyundai Merch. Marine Co. v. Grand China Shipping (Hong Kong) Co., 878 F. Supp. 2d
1252, 1260-61 (S.D. Ala. 2012). A “Court may consider [documents outside the
pleadings] when determining whether [an action] should be dismissed for insufficient
service of process.” Ford v. Navika Capital Grp., LLC, No. CV 14-00311-KD-C, 2016
WL 1069676, at *8 (S.D. Ala. Mar. 17, 2016) (citing Foster v. Bridgestone Ams. Inc., No.
11-0175-WS-N, 2011 WL 3606983, at *1 n.2 (S.D. Ala. Aug. 15, 2011) (“In the context
of a Rule 12(b)(5) motion such as that presented here, courts routinely consider matters
outside the four corners of the pleadings to ascertain whether service of process has
been properly completed.”).
The fact that Plaintiff is proceeding pro se does not excuse any failure on her part
to conform to procedural rules. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007)
(affirming dismissal of pro se action for insufficient service of process, noting that pro se
litigants are required to conform to procedural rules); Loren v. Sasser, 309 F.3d 1296,
1304 (11thCir. 2002) (holding that “[d]espite construction leniency afforded pro se
litigants, we nevertheless have required them to conform to procedural rules”). “Once a
pro se … litigant is in court, he 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. LEGAL ANALYSIS
“Valid service of process is an indispensable prerequisite to the assertion of
personal jurisdiction over a defendant.” Hyundai Merchant Marine Co. Ltd. V. Grand
China Shipping (Hong Kong) Co. Ltd., 878 F. Supp. 2d 1252, 1260-61 (S.D. Ala. 2012).
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Because Plaintiff names a “Corporation, Partnership, or Association,” MIS Inc., as a
defendant, Federal Rule of Civil Procedure 4(h) applies:
… a domestic or foreign corporation, or a partnership or
other unincorporated association that is subject to suit under
a common name, must be served: …
(A) in the manner prescribed by Rule 4(e)(1) for serving an
individual; or
(B) by delivering a copy of the summons and of the
complaint to an officer, a managing or general agent, or any
other agent authorized by appointment or by law to receive
service of process….
Fed. R. Civ. P. 4(h). To properly serve an individual under Rule 4(e)(1), a party must,
unless federal law provides otherwise, serve the individual by:
(1) following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where
the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to
the individual personally;
(B) leaving a copy of each at the individual’s dwelling or
usual place of abode with someone of suitable age and
discretion who resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e)(1).
Alabama state law provides that service of process shall be made on a
corporation or limited liability company, such as MIS, “by serving an officer, a partner
(other than a limited partner), a managing or general agent, or any agent authorized by
appointment or by law to receive service of process.” Ala. R. Civ. P. 4(c)(6). Alabama
law further provides for service by certified mail as a proper method of service. Ala. R.
Civ. P. 4(i)(2). Specifically:
[T]he attorney or party shall then place [the summons] and
complaint or other document to be served in an envelope
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and address the envelope to the person to be served with
instructions to forward. In the case of an entity within the
scope of one of the subdivisions of Rule 4(c), the addressee
shall be a person described in the appropriate subdivision.
The attorney or party shall 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). Therefore, to perfect service in this action, Plaintiff was
required to serve a summons and the complaint on MIS in one of the afore-mentioned
manners. Plaintiff chose the process outlined by Rule 4(i)(2)(B)(ii) of the Alabama Rules
of Civil Procedure. MIS contends that neither the summons nor the address on the
certified mail receipt set forth the correct name of “an officer, a partner (other than a
limited partner), a managing or general agent, or any agent authorized by appointment
or by law to receive service of process” on behalf of MIS and, therefore, process was
insufficient.
“When service of process is challenged, [the plaintiff] must bear the burden of
establishing its validity.” Winston v. Walsh, 829 F. App’x 448, 450 (11th Cir. 2020)
(quoting Aetna Bus. Credit, Inc. v. Universal Décor & Interior Design, Inc., 635 F.2d 434,
435 (5th Cir. 1981)). To properly serve MIS under Rule 4(h) of the Federal Rules of Civil
Procedure and Rule 4(c)(6) of the Alabama Rules of Civil Procedure, Plaintiff was
required to serve either “an officer, a partner (other than a limited partner), a managing
or general agent, or any agent authorized by appointment or by law to receive service of
process.” The summons Plaintiff caused to be issued in this case and the certified mail
envelope were addressed to “MIS, INC, c/o Attorney Brian Britt, PO Box 1138,
Fairhope, Alabama 36533.” (Doc. 7, PageID. 74; Doc. 9-1).
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Plaintiff has not met her burden of proving that she properly complied with this
requirement because there is no evidence that “Attorney Brian Britt” is an officer, a
managing agent, or general agent of MIS or an agent authorized by appointment or by
law to receive service of process on behalf of MIS. To the contrary, MIS avers that
“Attorney Brian Britt” is not an officer, a managing agent, a general agent, or an agent
authorized to receive service on its behalf. (Doc. 11). “Absent any evidence on this
point, the Court cannot determine whether [Plaintiff] complied with [Rule 4(h)]” by
attempting service on “Attorney Brian Britt.” Blue-Grace Logistics, LLC v. Harry
Logistics, Inc., Case No. 8:20-cv-1536-MSS-JSS, 2020 WL 10055354, at * 1 (M.D. Fla.
Dec. 7, 2020) (finding that Plaintiff did not carry burden of showing that Defendant’s
Safety Manager was an officer or a managing or general agent); see also LVNV
Funding, LLC v. Boyles, 70 So. 3d 1221, 1227-29 (Ala. Civ. App. 2009) (finding that
Plaintiff failed to prove that the person to whom she had addressed the envelope
containing the complaint, who was the company’s attorney-in-fact for a limited purpose,
was a managing or general agent for service purposes). Rather, the evidence here
shows that Britt was not a proper person for service of process on MIS.
Accordingly, Plaintiff failed to properly effect service of process on MIS.
IV. CONCLUSION
Due to Plaintiff’s pro se status, the undersigned Magistrate Judge finds that
dismissal would not be appropriate. Instead, the undersigned RECOMMENDS that
Defendant’s motion to quash service (Doc. 11) as to MIS be GRANTED and that
Plaintiff be given an extension of time of 30 days from entry of the Order adopting this
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Report and Recommendation to make proper service of her amended complaint (see,
supra, fn1) on MIS, Inc.
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. Gen. LR 72(c)(1) & (2). 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. To be specific, an
objection must identify the specific finding or recommendation to which objection is
made, state the basis for the objection, and specify the 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 the 13th day of February, 2025.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE
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