Opinion
3:24-68-MGL-PJG
07-10-2024
Thurmond Guess, Sr., Plaintiff, v. Daniel Coble as Richland County Circuit Court; Morgan Stuart Stout; Travelers, Insurance Company Property, Casualty Insurance Company; Brett Bayne, Defendants.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
Plaintiff Thurmond Guess, Sr., a self-represented litigant, filed this civil rights action, raising claims of due process violations pursuant to 42 U.S.C. § 1983, and state law defamation claims. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the defendants' motions to dismiss.(ECF Nos. 25, 37, 39.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Guess of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the defendants' motions. (ECF Nos. 27 & 41.) The motions are fully briefed and ripe for the court's review. Having reviewed the record presented and the applicable law, the court finds the defendants' motions should be granted and this case dismissed.
Defendant Brett Bayne has not appeared in this action.
BACKGROUND
The following allegations are taken as true for purposes of resolving the defendants' motion to dismiss. Guess filed this case on January 5, 2024 and paid the filing fee. Pursuant to the court's prescreening procedures for pro se cases, the court issued an order authorizing the issuance and service of process against the defendants on January 19, 2024. (ECF No. 7.) The court ordered the Clerk of Court to issue a summons and instructed Guess in bold lettering that he was responsible for service of process under Federal Rule of Civil Procedure 4. Guess was warned that under Rule 4(m), he had ninety days from the date of the order to serve each defendant, and that unserved defendants may be dismissed from the case.
Two weeks prior to the court's authorizing service and the issuance of a summons, Guess mailed the defendants a copy of the Complaint by certified mail. Guess filed a purported proof of service on February 6, 2024. (ECF No. 20.) The document is a single page with copies of certified mail receipts showing that Guess mailed copies of the Complaint to each defendant. Guess also included copies of the certified delivery receipts for Travelers Property Casualty Insurance Company (“Travelers”) and Bayne, showing that the certified mail was delivered on January 8, 2024 and January 9, 2024, respectively.
The defendants, except for Bayne, appeared and filed motions to dismiss. The defendants give several grounds for dismissal in each of their motions, but all three defendants who have appeared argue that they have not been properly served with process because they were mailed copies of the original Complaint but no summons.
DISCUSSION
The defendants argue they have not been served with a summons issued by the Clerk of Court, and therefore, this case should be dismissed pursuant to Federal Rules of Civil Procedure 12(b)(5). The court agrees.
A motion pursuant to Federal Rule of Civil Procedure 12(b)(5) is the proper means to challenge the sufficiency of service of process, such as the defendants' nonreceipt of the summons. See 5B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1353 (3d ed. Apr. 2021); but see Kyser v. Edwards, Case No. 2:16-cv-05006, 2017 WL 924249, at *3 (S.D. W.Va. Feb. 9, 2017) (finding dismissal appropriate under 12(b)(4) and 12(b)(5) for the non-issuance and non-delivery of a summons), report and recommendation adopted, 2017 WL 891293 (S.D. W.Va. Mar. 6, 2017). Fundamentally, Rule 4 requires that a summons be issued by the Clerk of Court and then served along with a copy of the complaint to effect service. Fed.R.Civ.P. 4(b), (c)(1).
The plaintiff bears the burden of proving that service of process was effected in accordance with Federal Rule of Civil Procedure 4. Richardson v. Roberts, 355 F.Supp.3d 367, 370 (E.D. N.C. 2019); Ballard v. PNC Fin. Servs. Grp., Inc., 620 F.Supp.2d 733, 735 (S.D. W.Va. 2009). The provisions of Rule 4 should be liberally construed to effectuate service and uphold the jurisdiction of the court, but the requirements of Rule 4 must also not be ignored. See Scott v. Md. State Dep't of Lab., 673 Fed.Appx. 299, 304 (4th Cir. 2016); Karlsson v. Rabinowitz, 318 F.2d 666, 668 (4th Cir. 1963). Where the plaintiff has failed to effect service, the court has broad discretion to either dismiss the action outright or quash service, retain the case, or order that the plaintiff be given another opportunity to serve the defendant. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1354 (3d ed. Apr. 2021).
Here, Guess fails to show that he served the defendants in accordance with Rule 4. Guess shows that he sent a copy of the Complaint by certified mail to each defendant, but he did so prior to the Clerk of Court's issuance of the summons. And, despite the defendants' insistence that they have not properly been served, Guess has not provided any indication or proof that he has corrected this deficiency by serving the issued summons and a copy of the operative pleading on the defendants, as is his burden. See Richardson, 355 F.Supp.3d at 370; Ballard, 620 F.Supp.2d at 735.
Consequently, Guess failed to serve the defendants within ninety days of the court's authorization of service pursuant to Rule 4(m), of which Plaintiff was warned: “If a defendant is not served within 90 days after the complaint is filed, the court . . . 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). Guess has not sought an extension of time to effect service for good cause shown.And, providing Guess more time to complete service would be futile and ultimately prejudicial to the defendants. See, e.g., Murphy, III v. Turner, Case No. 1:23-cv-02579, 2024 WL 3329049, at *5 (D. Colo. July 8, 2024) (refusing to extend the service deadline under Rule 4(m) for good cause shown where the plaintiff's claims were futile). As the defendants argue in their motions to dismiss, this case is plainly subject to dismissal for numerous reasons. Defendant Coble, a state court judge, is immune from claims for damages for actions he took in his judicial role. See generally Mireles v. Waco, 502 U.S. 9, 11 (1991). Defendants Travelers and Stout are not state actors amenable to suit pursuant to 42 U.S.C. § 1983. See generally West v. Atkins, 487 U.S. 42, 49 (1988). And the court lacks subject matter jurisdiction over a state law defamation claim where the only federal claim listed in the pleading is completely devoid of merit and no diversity jurisdiction exists because both plaintiffs and defendants are citizens of the same state. See Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452-53 (4th Cir. 2012); Burgess v. Charlottesville Sav. & Loan Ass'n, 477 F.2d 40, 43-44 (4th Cir. 1973).
Consequently, Guess's motion for default judgment as to Defendant Bayne should be denied. (ECF No. 43.)
RECOMMENDATION
Based on the foregoing, the court recommends that the defendants' motions to dismiss (ECF Nos. 25, 37, 39) be granted pursuant to Federal Rule of Civil Procedure 12(b)(4) & (5). Plaintiff's claims against Defendant Bayne should be dismissed pursuant to Rule 4(m). All claims should be dismissed without prejudice.
In light of the court's recommendation, Guess's motion for sanctions and motion for contempt should be denied. (ECF Nos. 29 & 72.)
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' ” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).