Opinion
Case No. 01-2373-JWL.
January 28, 2002
MEMORANDUM AND ORDER
Plaintiff, appearing pro se, filed suit against defendants alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This matter is presently before the court on defendants Derrick Smith, Deborah Sorchevich and the Board of Directors' motion to dismiss (doc. #22). For the reasons set forth below, the motion is granted and plaintiff's complaint is dismissed against the individual defendants, including the Board of Directors.
The individual defendants, including the Board of Directors, move to dismiss plaintiff's complaint as plaintiff has failed to effect proper service upon them within the 120-day period prescribed in Federal Rule of Civil Procedure 4(m). Specifically, defendants contend that plaintiff attempted service upon Mr. Smith and Ms. Sorchevich by mailing a copy of the summons and complaint to those individuals at their respective places of employment. Defendants also maintain that plaintiff attempted service upon the "Board of Directors" by mailing a copy of the summons and complaint to the registered agent for defendant Choicepoint. According to defendants, these methods of service are simply not authorized by relevant state or federal law. Plaintiff denies that service was improper and highlights that service was executed by certified mail by the United States Marshal Service.
The court agrees with the individual defendants that plaintiff (or, more accurately, the United States Marshal Service) has failed to effect proper service upon them. Federal Rule of Civil Procedure 4(e) requires service upon an individual by delivering a copy of the summons and complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode or by delivering copies thereof to an agent authorized by appointment or by law to receive service of process. See id. at 4(e)(2). Rule 4(e) also permits service upon an individual "pursuant to the law of the state in which the district court is located, or in which service is effected." See id. at 4(e)(1).
As service here clearly did not comport with Rule 4(e)(2), the court turns to the relevant state law regarding service of process upon individuals. Under Kansas law, service by certified mail on an adult, nondisabled individual must be addressed to "the individual's dwelling house or usual place of abode." See K.S.A. § 60-304(a). Kansas law does not allow service by certified mail to a business address, until the "certified mail to the individual's dwelling house or usual place of abode is refused or unclaimed." See id. In the latter event, such service is permitted only "after filing a return of service stating the certified mailing to the individual at such individual's dwelling house or usual place of abode has been refused or unclaimed." See id. There has been no showing here that the certified mailing was refused or unclaimed at Mr. Smith's or Ms. Sorchevich's residence. Thus, service by certified mail to a business address was ineffective under Kansas law.
With respect to the Board of Directors, a copy of the summons and complaint were delivered to defendant Choicepoint's registered agent. Plaintiff, however, has not shown that Choicepoint's registered agent was also authorized to accept service of process on behalf of the individual Board members.
As Kansas law does not authorize the manner of service utilized by the United States Marshal Service, the court looks to Georgia law and Illinois law-the states in which service upon Mr. Smith and Ms. Sorchevich, respectively, was attempted. Georgia law does not contemplate mail service upon an individual at the individual's place of employment under any circumstances. See Ga. Code Ann. § 9-11-4(e)(7). Similarly, Illinois law permits service upon an individual defendant only by leaving a copy of the summons with the defendant personally or by leaving a copy at the defendant's usual place of abode. See 735 ILCS 5/2-203. Thus, the methods of service used by the United States Marshal Service were simply not authorized by federal or state law.
As plaintiff suggests in her papers, however, she is entitled to rely on the United States Marshal Service for service of the summons and complaint because she is proceeding in forma pauperis. See Fed.R.Civ.P. 4(c)(2); Freeman v. State of Kansas, No. 97-2531-JWL, 1998 WL 259899, at *2 (D.Kan. Apr. 10, 1998). In such circumstances, insufficient service is not the responsibility of the plaintiff and the plaintiff, assuming the necessary information has been provided, is generally not penalized with dismissal of the complaint. See Freeman, 1998 WL 259899 at *2 (citing cases). Rather, the court typically orders the clerk of the court to prepare and issue another summons and orders the United States Marshal Service to serve the summons along with a copy of the complaint using an appropriate method of service. See id. at *3.
Here, however, the court will not order the United States Marshal Service to effect proper service on the individual defendants because such service would be futile. As noted above, plaintiff's complaint is premised exclusively on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Title VII makes it unlawful for an "employer" to "refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." See 42 U.S.C. § 2000e-2(a)(1). Thus, the individual defendants, including the members of the Board of Directors, are subject to Title VII only if, at the time of the alleged discrimination, they meet the statutory definition of "employer," to wit: "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." See Walters v. Metropolitan Educational Enterprises, Inc., 519 U.S. 202, 205 (1997) (quoting 42 U.S.C. § 2000e(b)). It is well settled in the Tenth Circuit that individuals are not "employers" for purposes of Title VII. See Haynes v. Williams, 88 F.3d 898, 901 (10th Cir. 1996) (Title VII liability is appropriately borne by employers, not individual supervisors). Because the Haynes decision mandates the dismissal of plaintiff's claims against the individual defendants in any event, service upon those individuals would be futile.
For the foregoing reasons, the individual defendants' motion to dismiss is granted.
IT IS THEREFORE ORDERED BY THE COURT THAT defendants' motion to dismiss (doc. #22) is granted and plaintiff's complaint against Derrick Smith, Deborah Sorchevich and the Board of Directors is dismissed.
IT IS SO ORDERED.