Sunday N. Udoinyion v. The Guardian Security, et al

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEMBER 7, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-10873
Non-Argument Calendar
________________________
D.C. Docket No. 1:08-cv-01729-CC
SUNDAY N. UDOINYION,
Plaintiff-Appellant,
versus
THE GUARDIAN SECURITY,
CEO BENJAMIN T. MANER, III,
REGISTERED AGENT KATHERINE MANER,
THE GUARDIAN SECURITY MANAGEMENT &
INVESTIGATIVE SERVICES, INC.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 7, 2011)
Before BARKETT, MARCUS and FAY, Circuit Judges.
PER CURIAM:

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Sunday N. Udoinyion appeals pro se from the dismissal, with prejudice in
part and without prejudice in part, of his employment-discrimination suit against
his former employer, The Guardian Security Management & Investigative
Services, Inc. (“Guardian Security”), its Chief Executive Officer (“CEO”),
Benjamin T. Maner, III, and its human resources director, Katherine Maner. He
argues, first, that the district court erred in finding that his claims against the
Maners in their individual capacities were not cognizable under Title VII of the
Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act
(“ADA”). He further contends that the district court erred in dismissing his claims
against Guardian Security without prejudice on grounds of failure to effect timely
service of process. For the reasons set forth below, we affirm in part, reverse in
part, and remand.
I.
On May 13, 2008, Udoinyion filed a complaint pro se against “The
Guardian Security,” alleging that it had retaliated against him for seeking a
reasonable accommodation for his disability and for complaining about unlawful
discrimination on the basis of his disability. He alleged that this conduct violated
both Title VII and the ADA. In brief, the complaint alleged that he requested and
received a transfer to a security post that would permit him to patrol by car rather
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than on foot, in order to accommodate the disabling condition of his knees, but
that, as a direct result of that request, his employment was terminated within two
weeks of the transfer. He further alleged the direct involvement of Benjamin and
Katherine Maner in the decisions to terminate his employment and to challenge,
under false pretenses, his application for unemployment benefits.
In a July 2008 filing with the district court, Udoinyion stated that he had
retained two process servers in an attempt to serve the complaint and summons on
Guardian Security. The first process server went to the Guardian Security offices
in May 2008 and spoke with the receptionist, but she was unable to see Katherine
Maner, its registered agent. The second process server, the Fulton County
Marshal, attempted to effect service in June 2008. The Marshal returned the
summons with a notation that Guardian Security was “no longer in business
(changed names),” but when Udoinyion subsequently called Guardian Security’s
phone number, a receptionist answered, “The Guardian.” Accordingly, Udoinyion
notified the court that he believed Guardian Security to be evading service and that
he wished to amend the complaint to include a possible new name for the
company.
Udoinyion filed the amended complaint in August 2008, naming Benjamin
and Katherine Maner as individual defendants and identifying Guardian Security
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by its full name. The amended complaint also added a claim for national-origin
discrimination in violation of Title VII. He completed a separate summons for
each defendant. On September 4, 2008, his third process server filed Returns of
Service, including sworn and notarized declarations that he had served process
personally on Benjamin Maner at 2839 Church Street in Atlanta, Georgia, and had
served the other two summonses by leaving them with Benjamin Maner as the
owner and CEO of the company.
Two weeks later, an unsigned letter by an unidentified writer was sent to the
district court clerk. The letter gave only the name “AshBritt Police & Security
Uniforms” in the return-address block and included the typed closing
“Respectfully, AshBritt Uniforms,” but was written in the first person. The writer
indicated that when the third process server entered the AshBritt Uniforms store
and attempted to go upstairs to the Guardian Security offices, an AshBritt
employee stopped the process server and told him that Guardian Security was out
of business. The AshBritt employee then “playfully insinuated” that he was the
owner of Guardian Security so that the process server would give him the “mail,”
which the employee had agreed to collect for Benjamin Maner. When the process
server gave the paperwork to the employee and said that he was served, the
employee laughed, apologized, and tried to return the papers, but the process
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server insisted that he had been served. The employee “left” the papers for the
letter-writer, who indicated that he or she had decided to mail the papers to the
district court rather than “create anymore problems.”
Udoinyion filed a response with the court, stating that (1) Benjamin Maner
is the owner of both AshBritt and Guardian Security, and (2) in light of the
process server’s sworn Return of Service, the purported AshBritt employee likely
was actually Benjamin Maner. He further noted that Guardian Security had
dissolved its corporate form on December 10, 2007, and he alleged that it had
done so in response to the Equal Employment Opportunity Commission’s
(“EEOC”) issuance of Udoinyion’s right-to-sue letter.
Benjamin Maner subsequently submitted an unsigned letter to the district
court, asserting that (1) the process server interacted with an AshBritt employee
that day, (2) the AshBritt employee was not Benjamin Maner, Katherine Maner, or
anyone authorized to accept service for Guardian Security, and (3) “The Guardian
Security [Management] & Investigative Services” had dissolved and was no
longer in business. The letter asked the court to dismiss the complaint, but no
defendant filed a formal motion to dismiss, and no attorney entered a notice of
appearance on Guardian Security’s behalf.
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Udoinyion moved for entry of default, arguing that the defendants had been
properly served and had failed to respond. He included a sworn affidavit in which
he attested that the parties had been duly served. In denying the motion in August
2009, the district court found that Guardian Security had dissolved effective
December 10, 2007. Although the process server stated that he had served
Guardian Security, the Maners said that they had not been served, and the letter
from AshBritt indicated that the papers actually had been left with an AshBritt
employee. Based on this record, the court found that Udoinyion had not carried
his burden of proving that service had been effected.
In November 2010, a magistrate judge recommended dismissing the
complaint with prejudice as to the Maners and without prejudice as to Guardian
Security. With respect to the Maners, the magistrate noted that Title VII and the
ADA prohibit suits against individuals, regardless of those individuals’ roles in
hiring and firing. The magistrate then noted that, in light of the district court’s
earlier finding, Udoinyion had failed to establish that he had timely effected valid
service of process on Guardian Security. Furthermore, Udoinyion had been on
notice of the defect in service since mid-2009, but had not asked for an extension
of time to effect proper service and had not established either good cause for the
delay or grounds for a permissive extension of time, particularly in light of the
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more than two-year delay since the filing of the complaint. Accordingly, Federal
Rule of Civil Procedure 4(m) required dismissal without prejudice as to Guardian
Security.
Udoinyion objected that Guardian Security had evaded service. He alleged
that Benjamin Maner dissolved the company under its original name and gave it a
new name when Udoinyion obtained his right-to-sue letter, and that Maner had
either collaborated with or deceived his process servers in order to avoid process.
He further maintained that the third attempt to serve process was effective, and
that if it was not, Maner had continually frustrated his good-faith attempts to serve
process, and further attempts to do so would be futile. He contended that
Benjamin Maner’s claim of defective service was unsupported by any competent
affidavit and, thus, the court should not consider it.
The district court noted, first, that Udoinyion had not objected to the
magistrate’s report insofar as it recommended dismissal with prejudice of the
claims against Benjamin and Katherine Maner. It then overruled Udoinyion’s
objections to the magistrate’s findings as to service of process on Guardian
Security. The court adopted the magistrate’s report in its entirety, dismissed the
complaint as to the Maners with prejudice, and dismissed the complaint as to
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Guardian Security without prejudice pursuant to Federal Rule of Civil Procedure
4(m).
II.
Where a party to a civil suit fails to object to the magistrate’s findings of
fact, despite receiving notice of the consequences of failure to object, and the
district court adopts those findings, we review the findings only for plain error or
manifest injustice. Resolution Trust Corp. v. Hallmark Builders, Inc., 996 F.2d
1144, 1149 (11th Cir. 1993).
“[R]elief under Title VII is available against only the employer and not
against individual employees whose actions would constitute a violation of the
Act.” Dearth v. Collins, 441 F.3d 931, 933 (11th Cir. 2006). “[T]he alter ego
doctrine does not create an exception to the rule against individual employee
liability in Title VII cases.” Id. at 934. Similarly, “individual liability is precluded
for violations of the ADA’s employment discrimination provision.” Albra v.
Advan, Inc., 490 F.3d 826, 830 (11th Cir. 2007).
Here, the magistrate correctly found that Benjamin and Katherine Maner
were not subject to suit because both Title VII and the ADA require that suits be
brought only against employer-entities, not persons in their individual capacities.
See Albra, 490 F.3d at 830; Dearth, 441 F.3d at 933. Udoinyion failed to object to
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the magistrate’s findings of fact as to the Maners, and he has failed to show that
the magistrate and district court plainly erred in concluding that there was no
factual basis for disregarding Guardian Security as the employer-entity and
holding either of the Maners individually liable. See Resolution Trust, 996 F.2d at
1149. Accordingly, the district court did not err in dismissing the complaint1
against Benjamin and Katherine Maner with prejudice.
III.
“We review the district court’s grant of a motion to dismiss for insufficient
service of process . . . by applying a de novo standard to the law and a clear error
standard to any findings of fact.” Albra, 490 F.3d at 829 (quotation omitted). A
plaintiff may serve process on a corporation by delivering the summons and
complaint to an officer, managing or general agent, or other agent who is
authorized to receive service of process. Fed.R.Civ.P. 4(h)(1)(B). The plaintiff
must make proof of service to the court by submitting the server’s affidavit.
Fed.R.Civ.P. 4(l)(1). The plaintiff must serve the defendant with process within
120 days of the filing of the complaint. Fed.R.Civ.P. 4(m). An unsworn written
Udoinyion argues for the first time on appeal that he should be permitted to pierce the1
corporate veil due to the Maners’ alleged abuse of the corporate form. We ordinarily do not consider
issues raised for the first time on appeal. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1332
(11th Cir. 2004). Accordingly, we decline to consider this argument.
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declaration may be used as evidence if the writer includes and signs a statement
such as, “I declare under penalty of perjury that the foregoing is true and correct.”
28 U.S.C. § 1746. A corporation is an artificial entity that cannot appear pro se
and must be represented by counsel. Palazzo v. Gulf Oil Corp., 764 F.2d 1381,
1385 (11th Cir. 1985).
Udoinyion filed his original complaint on May 13, 2008. Thus, assuming
that his amendment of the complaint did not extend the time for service, he was
required to serve Guardian Security with process by September 10, 2008. See
Fed.R.Civ.P. 4(m). On September 4, 2008, Udoinyion’s third process server filed
a return of service, swearing before a notary under penalty of perjury that he had
served process personally on Benjamin Maner, the owner and CEO of the
company, at 2839 Church Street, Atlanta, the address of Guardian Security’s
office. Thus, Udionyion established the prima facie validity and timeliness of
service. See Fed.R.Civ.P. 4(h)(1)(B), (l), (m).
Although Benjamin Maner’s letter asked the court to dismiss the case on the
basis of defective service, no attorney ever made any such argument on Guardian
Security’s behalf or filed a motion to that effect. See Palazzo, 764 F.2d at 1385.
Furthermore, the only documents in the district court record that challenge the
validity of service are (1) the unsigned letter from “AshBritt Uniforms,” in which
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one unidentified employee purports to describe the interaction between another
unidentified employee and the process server, and (2) the unsigned letter from
Benjamin Maner, which agrees with the AshBritt letter’s description of the
interaction between the employee and the process server. Neither of these
documents satisfies the standard for an unsworn declaration under § 1746, and,
furthermore, both appear to rely only upon inadmissible hearsay. See Fed.R.Evid.
802. Therefore, no competent evidence existed in the record that could call into
question the prima facie validity of service. Accordingly, the district court clearly
erred in finding that Udoinyion had failed to properly serve Guardian Security
with process within the 120-day time limit. See Albra, 490 F.3d at 829.
For the foregoing reasons, we affirm the dismissal with prejudice of the
claims against the Maners as individuals, reverse the dismissal without prejudice
of the claims against Guardian Security, and remand for further proceedings
consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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