The service return documents confirm Defendants' description of the service. “If a defendant is not properly served, a federal court lacks jurisdiction over that defendant whether or not he or she has actual notice of the suit.” Cheeks v. Belmar, 331 F.R.D. 499, 504 (E.D. Mo. 2019) (citing Adams v. AlliedSignal General Aviation Avionics, 74 F.3d 882, 885 (8th Cir. 1996)). “Once a plausible challenge to the sufficiency of service of process is made, the plaintiff bears the ultimate burden to make a prima facie showing that service was valid under governing law.” Id. (citing Northrup King Co. v. Compania Productora Semillas Algodoneras Selectas, S.A., 51 F.3d 1383, 1387 (8th Cir. 1995)). Plaintiffs' service was insufficient.
is challenged, the serving party bears the burden of establishing that service was proper. Cheeks v. Belmar, 331 F.R.D. 499, 504 (E.D. Mo. 2019).
The Court further observes that although Defendants Choate and Leon-Streeter are sued in both their individual and official capacities in this action, Plaintiffs have not sought to serve them in both capacities. See Cheeks v. Belmar, 331 F.R.D. 499, 504 (E.D. Mo. 2019) ("[W]here a defendant is sued in both [her] individual and official capacities, . . . the "defendant is entitled to receive service of process in both capacities. Service in one capacity does not confer jurisdiction over the other capacity, even though the defendant is fully aware of the suit.")
The defense of insufficient service of process is personal. Wright & Miller, supra, § 1353; Cheeks v. Belmar, 331 F.R.D. 499, 502 n.2 (E.D. Mo. 2019). Defendants state they have no association with Defendant Re Poly, LLC.
Service to a Missouri county official under Rule 4(j)(2)(B) can be accomplished by delivering a copy of the summons and complaint to the appropriate county clerk pursuant to Missouri Supreme Court Rule 54.13(b)(4). Cheeks v. Belmar, 331 F.R.D. 499, 505 (E.D. Mo. 2019). That process was not attempted here.
(“[L]eaving a copy of the summons at the defendant's place of employment, when the service of process statute requires that the server leave it at the defendant's dwelling, is not valid service of process.”); See also Cheeks v. Belmar, 331 F.R.D. 499, 506 (E.D. Mo. 2019); see also Zaritz v. Vest, No. 2:24-CV-00018 AGF, 2024 WL 2975748, at *2 (E.D. Mo. June 13, 2024) (“Service must be personal, and it is not proper if served on a coworker or supervisor.”).
Additionally, defendant Dayan was only named in the original Complaint as an individual; however, Plaintiff's Amended Complaint adds that Dayan is now also named in his capacity as guardian and next friend of minor children, R.G. and J.O. Ashley also was newly named as a defendant in her capacity as guardian and next friend of the minor children. See, e.g., Cheeks v. Belmar, 331 F.R.D. 499, 504 (E.D. Mo. 2019) (“Service in one capacity does not confer jurisdiction over the other capacity, even though the defendant is fully aware of the suit.”) (quoting 1 James Wm. Moore, et al., Moore's Federal Practice § 4.50[3] (3d ed. 2018))
.R.Civ.P. 4(e). See also Cheeks v. Belmar, 331 F.R.D. 499, 502-03 (E.D. Mo. 2019). If a defendant is not properly served, a federal court lacks jurisdiction over that defendant.
“It is a fundamental principle of § 1983 litigation that a ‘suit against a public official in his official capacity is actually a suit against the entity for which the official is an agent.'” Cheeks v. Belmar, 331 F.R.D. 499, 507 (E.D. Mo. 2019) (quoting Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006)); see also Kelly v. City of Omaha, 813 F.3d 1070, 1075 (8th Cir. 2016) (“A plaintiff who sues public employees in their official, rather than individual, capacities sues only the public employer ....”).
Rather, “where a defendant is sued in both his individual and official capacities, . . . the defendant is entitled to receive service of process in both capacities. Service in one capacity does not confer jurisdiction over the other capacity, even though the defendant is fully aware of the suit.” Cheeks v. Belmar, 331 F.R.D. 499, 504 (E.D. Mo. 2019) (citations and internal quotation marks omitted); Monte Nido Missouri LLC v. St. Louis Cty., Missouri, Civ. Action No. 20-1491, 2020 WL 6703289, at *1 (E.D. Mo. Nov. 13, 2020) (plaintiff sued defendant in official and individual capacities, but only served him in official capacity); Ruiz v. Rhode Island, Civ. Action No. 16-507, 2018 WL 514539, at *2 (D.R.I. Jan. 22, 2018) (“effecting service on someone in his official capacity does not ipso facto do so in his individual capacity, and vice versa”)