Opinion
Civil Action No. 2:16-CV-062-J
07-18-2016
GARY ORVALL GARDNER, SR., pro se, and ELIZABETH DONLIN, pro se, Plaintiffs, v. SANTOS GUERRERO, in his Official and Individual Capacities; and MCKAYLIE CAMPBELL, in her Official and Individual Capacities. Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT CAMPBELL'S MOTION TO DISMISS
Before the Court is Defendant McKaylie Campbell's motion, filed April 19, 2016, to dismiss all claims asserted herein against her pursuant to Rule 12(b)(5) because of the insufficiency of Plaintiffs' service of process. No response to this motion has been filed, and the time in which Plaintiffs may timely respond has now long expired. For the following reasons, Defendant's motion is GRANTED.
Plaintiffs attempted to effectuate service on Defendant Campbell by sending a copy of the summons and complaint through certified mail. Pursuant to the Federal Rules of Civil Procedure, only a non-party may serve a summons and complaint. Fed. R. Civ. Pro. 4(c)(2). Therefore, proper service has not been effectuated. Unless a defendant has been served with process in accordance with Fed. R. Civ. P. 4, a federal court lacks personal jurisdiction over that defendant. See Omni Capital Intern., Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104, 108 S.Ct. 404 (1987); Delta Steamships Lines, Inc. v. Albano, 768 F.2d 728, 730 (5th Cir. 1985). Defendant's motion to dismiss notified both Plaintiffs of that service deficiency. The record shows that the Plaintiffs did not cure the deficieny by timely effectuating proper service on Defendant, and no party has requested an extension of time to do so. A "defendant's actual notice of the litigation . . . is insufficient to satisfy Rule 4's requirements" in the complete absence of proper service. Way v. Mueller, 840 F.2d 303, 306 (5th Cir. 1988). Defendant Campbell expressly prays for dismissal without prejudice of her from this case. The Court hereby grants that request.
For all of the above-stated reasons, it is therefore ORDERED that Defendant McKaylie Campbell's motion to dismiss pursuant to Rule 12(b)(5) is GRANTED.
All of the Plaintiffs' claims and causes of action against Defendant McKaylie Campbell are hereby DISMISSED WITHOUT PREJUDICE.
It is SO ORDERED.
Signed this the 18th day of July, 2016.
/s/_________
MARY LOU ROBINSON
United States District Judge