Summary
granting a motion to dismiss for improper service of process where plaintiff served defendant with "his earlier-dismissed complaint, which had previously been found legally defective, rather than a copy of his amended complaint"
Summary of this case from Graves v. Dep't of Veterans AffairsOpinion
Case No. 3:06cv5/RV/EMT.
August 8, 2006
ORDER
Plaintiff James Hawthorne brought an action in this court against Baptist Hospital, Inc. alleging claims of retaliation and racial discrimination under Title VII of the Civil Rights Act of 1964 [ 42 U.S.C. § 2000e, et seq.] The Defendant now moves to dismiss based on defects in the service of process. (Doc. 20) For the purposes of this motion, the factual allegations in the Plaintiff's complaint will be taken as true.
I. DISCUSSION
A. Motion to Dismiss Standard
A motion to dismiss for failure to state a claim cannot be granted unless the complaint alleges no set of facts, which, if proved, would entitle the plaintiff to relief. See, e.g., Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994). On a motion to dismiss, the court must accept all of the alleged facts as true and find all inferences from those facts in the light most favorable to the plaintiff. See, e.g., Cruz v. Beto, 405 U.S. 319, 92 S. Ct. 1079, 31 L. Ed. 2d 263 (1972); Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994).
B. Process
Plaintiff's service of process in this case has been defective in several respects. Plaintiff failed to indicate in his summons whether he has retained counsel and, if so, counsel's name and address, as required by Rule 4(a) of the Federal Rules of Civil Procedure. He served the Defendant with a copy of his earlier-dismissed complaint, which had previously been found legally defective, rather than a copy of his amended complaint, as required by Rule 4(c)(1). And, he has failed to properly execute service of process on the Defendant as required by Rule 4(m), despite being granted several time-extensions in which to do so. These deficiencies require the Plaintiff's complaint to be dismissed without prejudice.
II. CONCLUSION
For the above reasons, the Defendant's motion to dismiss (Doc. 20) is GRANTED. The Plaintiff shall have fourteen days to file an amended complaint, in lieu of which this case shall be closed.
DONE AND ORDERED.