Opinion
Case No. 1:09cv658.
August 24, 2010
ORDER
This matter is before the court upon Plaintiff's objections (Doc. 45) to the Magistrate Judge's Report and Recommendation (Doc. 31) recommending that Plaintiff's motion for default judgment (Doc. 12) be denied; that the Court sua sponte vacate the entry of default against Defendant Ohio State Highway Patrol; that Defendant Ohio State Highway Patrol's motion to set aside entry of default (Doc. 21) be denied as moot; and that the Defendant Ohio State Highway Patrol's motion for leave to incorporate memorandum in opposition to plaintiff's motions (Doc. 26) be denied as moot. For the reasons set forth below, the Court agrees with the Magistrate Judge and adopts the Report and Recommendation ("Report") in its entirety.
I. Relevant Procedural and Factual Background
Plaintiff filed a pro se complaint on September 8, 2009 (Doc. 1) against Defendants Ohio State Highway Patrol ("OSHP"), Ohio Department of Public Safety ("ODPS"), ODPS Directory Henry Guzman, OSHP Superintendent Colonel Richard H. Collins, Major Bruce A. Ludlow, Major Daniel K. Kolcum, Captain Kevin D. Teaford, Staff Lt. John R. Allard, Lt. Todd E. Lee, Lt. Charles J. Linek, III, Sergeant Christopher A. Crisafi, Sergeant Robert G. New, and John and/or Jane Doe(s) 1-50 alleging violations of his constitutional rights under 42 U.S.C. § 1983. The Court's docket reflects that a summons was returned "executed" on OSHP by personal service on September 24, 2009. (See Doc. 5). Plaintiff then filed an amended complaint on October 14, 2009 (Doc. 7) naming an additional defendant, Rhonda J. Goins, and alleging additional causes of action. Waivers of service of summons as to the amended complaint were filed on October 29, 2009 by Plaintiff as to Defendants Crisafi, Kolcum, Lee, Linek, New, ODPS, Teaford and Goins. (See Doc. 8).
However, it appears that although Plaintiff claimed to have obtained personal service on OSHP as to the original complaint, he also served a waiver of service of summons on OSHP. OSHP executed the waiver of service of summons on October 16, 2009. (See Doc. 14-1, p1). Plaintiff did not file this waiver with the Court and argues that it must have been inadvertently included with the original complaint and that he did not receive the executed waiver. (See Doc. 24). Plaintiff then applied for entry of default against OSHP based upon the alleged personal service of the original complaint on the entity. (Doc. 9). The Clerk of Court entered default against OSHP on November 13, 2009. (Doc. 10). Plaintiff now moves for default judgment against OSHP (Doc. 12) and OSHP moves to set aside the Default Entry. (Doc. 21).
II. Legal Analysis and Opinion
When objections are received to a magistrate judge's Report and Recommendation on a dispositive matter, the assigned district judge "shall make a de novo determination . . . of any portion of the magistrate judge's disposition to which specific written objection has been made. . . ." Fed.R.Civ.P. 72(b). After review, the district judge "may accept, reject or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Id; see also 28 U.S.C. 636(b)(1)(B). General objections are insufficient to preserve any issues for review; "[a] general objection to the entirety of the magistrate's report has the same effects as would a failure to object." Howard v. Secretary of Health and Human Services, 932 F.2d 505 (6th Cir. 1991). Petitioner, after receiving a slight extension, timely objected.
The Magistrate Judge found that Plaintiff's personal service on OSHP was defective and thereby Plaintiff was not entitled to an entry of default against OSHP. The Magistrate Judge correctly relied on Fed.R.Civ.P. 4(j) which states that service on a state or state-created governmental organization must be served by "(A) delivering a copy of the summons and of the complaint to its chief executive officer; or (B) serving a copy of the each in the manner prescribed by that state's law for serving a summons or like process on such a defendant." Fed.R.Civ.P. 4(j)(2). The Magistrate Judge then looked to Ohio Civil Rule 4.2(K) which states that service of process is made upon the State of Ohio or "any one of its departments, offices and institutions as defined in division (C) of Section 121.01 of the Revised Code, by serving the officer responsible for the administration of the department, office or institution or by serving the attorney general of this state." Ohio Civ. R. 4.2(K) (emphasis added). Plaintiff objects to the Magistrate Judge's reliance on Ohio Civil Rule 4.2(K) and argues that instead the proper rule is Rule 4.2(O) since OSHP is not a department, office or institution defined in O.R.C. § 121.01. The Magistrate Judge correctly points out that, per O.R.C. § 5503.01, OSHP is a division of ODPS. Plaintiff argues that although OSHP is a division of ODPS that it is not a "division" as defined in O.R.C. § 121.01(B). The Court agrees with Plaintiff that OSHP is not a division as defined in § 121.07; however, the Plaintiff has overlooked § 121.01(C) which specifically defines "departments, offices and institutions" to "include every organized body, office, and agency established by the constitution and laws of the state for the exercise of any function of the state government, and every institution or organization which receives support from the state." O.R.C. § 121.01(C). OSHP is included in this broader definition. Therefore, the Magistrate Judge correctly determined that Ohio Civil R. 4.2(K) applies and that Plaintiff did not properly serve OSHP . . .
Even if Rule 4.2(O) applied, the Plaintiff still failed to properly serve OSHP. Rule 4.2(O) states that service shall be made "upon any government entity not mentioned above by serving the person, officer, group or body responsible for the administration of that entity or by serving the appropriate legal officer, if any. Service upon any person who is a member of the "group" or "body" responsible for the administration shall be sufficient." In this instance, that "person, officer, group or body" is the Superintendent. See O.R.C. § 5503.01. Plaintiff alleges that he employed a process server who states that he personally delivered a copy of the complaint and summons to a Ms. Shannon E. Colyer at OSHP station in Wilmington, Ohio on September 24, 2009. (See Doc. 24, Affidavit of Michael Twombly). According to the affidavit of the process server, Ms. Colyer is "a female official" who was "wearing a uniform" and was "seated at a desk on the other side of the window" in the public reception area of the Wilmington, Ohio location of OSHP. (Id. at ¶ 9). There is no evidence that she is a member of the "group" or "body" responsible for the administration of OSHP, which in this case would be the office of the Superintendent. To include every lower level officer, administrative employee or clerical employee would be contrary to the Staff Notes to Rule 4.2. The Staff Notes, as cited by the Magistrate Judge in the Report, also apply to Rule 4.2(O), formerly Rule 4.2(14), which states that "[e]ach rule is designed to require that fair notice of a suit is given to the appropriate governmental officer in charge of a governmental unit involved in a lawsuit . . . ". If Ms. Colyer was the direct secretary or administrative assistant to the Superintendent then the Court may be more inclined to agree with Plaintiff. However, that is not the case. Plaintiff failed to effectuate service under either Rule 4.2(K) or 4.2(O). Therefore, the entry of default was improper and is hereby, sua sponte, vacated.
Since Plaintiff failed to properly serve the original complaint, his service of the amended complaint under Fed.R.Civ.P. 5 is also deficient since Rule 5 applies to the service of documents only after the original complaint has been properly served. Plaintiff should have served the amended complaint on OSHP under Ohio Civ. R. 4.2 as explained above. The Court notes that the Magistrate Judge noted in Footnote 4 that the time limit for perfecting service on OSHP under Fed.R.Civ.P. 4(m) had not yet run so that plaintiff could still attempt service of process on OSHP. Unfortunately, that time period has now run. However, Fed.R.Civ.P. 4(m) provides that "if the plaintiff shows good cause for the failure [to serve the defendant], the court must extend the time for service for an appropriate period." Based upon the pleadings before the Court and the time lag between the issuance of the Report and this Order, the Court finds that Plaintiff could show good cause for the failure to properly serve the Defendant OSHP. Thus, the Court, sus sponte, extends Plaintiff's time to properly serve the amended complaint on OSHP to October 1, 2010.
Based upon the above findings, the Court finds that OSHP's motion to set aside entry of default and its motion for leave to incorporate memorandum in opposition to plaintiff's motions are moot.
III. Conclusion
Having reviewed this matter de novo, the Court finds the Magistrate Judge's Report and Recommendation thorough, well reasoned, and correct. Thus, the Court ADOPTS the Magistrate Judge's Report and Recommendation in its entirety (Doc. 31) with the addition that Plaintiff shall have until October 1, 2010 in which to properly serve the amended complaint on the Ohio State Highway Patrol. Plaintiff's motion for default judgment (Doc. 12) is DENIED. The Court sua sponte vacates the entry of default against Defendant Ohio State Highway Patrol (Doc. 10). Defendant Ohio State Highway Patrol's motion to set aside entry of default (Doc. 21) is DENIED as moot. The Defendant Ohio State Highway Patrol's motion for leave to incorporate memorandum in opposition to plaintiff's motions (Doc. 26) is DENIED as moot.
IT IS SO ORDERED.
Exhibit