Opinion
IP 00-1465-C-M/S
March 9, 2001
ORDER ON DEFENDANT MICHAEL SHERMAN'S MOTION TO DISMISS FOR INSUFFICIENT SERVICE OF PROCESS
This matter is before the Court on defendant Michael Sherman's ("Sherman") motion to dismiss under FED. R. CIV. P. 12(b)(5) for insufficient service of process. After reviewing the parties' arguments, the Court DENIES Sherman's motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Clay Roberson ("Roberson") filed this personal injury matter in state court on August 22, 2000. Defendants removed it to this Court on September 20, 2000. Defendant Arrow Trucking received service of process by certified mail on August 26, 2000. After contacting the clerks of this Court and the state court where this matter was pending, counsel for Sherman determined that neither court had any record that Sherman had received service of process. Sherman then filed this motion to dismiss.
Roberson explains that on September 27, 2000, he filed a Praecipe for Summons delivered to the Indiana Secretary of State as an agent of Sherman. On October 5, 2000, Roberson received an "Affidavit Of Service By Secretary of State," which affirmed that the summons and a copy of the complaint were mailed to Sherman on October 2, 2000, and that "the return receipt and/or envelope containing the summons and a copy of the complaint is attached hereto." See Pl.'s Response Brief, Ex. 2. According to Roberson, this was valid service of process under the rules of federal and Indiana procedure.
II. STANDARDS A. RULE 12(B)(5)
FED. R. CIV. P. 12(b)(5) provides for dismissal because of failure of service of process. To withstand a motion to dismiss under this rule, the party on behalf of whom service is attempted bears the burden of proving its validity. Robinson v. Turner, 886 F. Supp. 1460, 1461 (S.D. Ind. 1995). Motions to dismiss are to be granted sparingly so parties are not denied the chance to have their substantive claims heard. Id.
B. SERVICE OF PROCESS
Under FED. R. CIV. P. 4(m), Roberson had 120 days to serve Sherman with process. Manley v. City of Chicago, 236 F.3d 392, 395 (7th Cir. 2001) (Rule 4(m) allows a plaintiff 120 days after the filing of the complaint to effect service upon a defendant). Where a case has been removed, some federal courts allow the plaintiff 120 days from the date of removal to effectuate service. See, e.g., Henson v. Lowe's Home Centers, Inc., 2000 WL 1015833, *1 (N.D. Miss. June 27, 2000), citing Ritts v. Dealers Alliance Credit Corp., 989 F. Supp. 1475, 1478 (N.D.Ga. 1997) (citing cases authorizing 120-day period beginning on date action removed to federal court); Purvis v. Jenkins, 1998 WL 290212, *3 (E.D.La. June 2, 1998) (defendant should have been served within 120 days after removal to federal court); Randolph v. Hendry, 50 F. Supp.2d 572, 579-80 (S.D.W. Va. 1999) (recognizing that federal court does not obtain an interest in the action — and cannot therefore dictate the terms of service — until notice of removal is filed); G.G.G. Pizza, Inc. v. Domino's Pizza, Inc., 67 F. Supp.2d 99, 102 (E.D.N.Y. 1999) (concluding that 120-day period for service in removed case runs from date of notice of removal).
With respect to the proper procedure for service of process, FED. R. CIV. P. 4(e)(1) states that:
Unless otherwise provided by federal law, service upon an individual from whom a waiver as not been obtained and filed, other than an infant or incompetent person, may be effected in any judicial district of the United States:
(1) pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction in the State.
Under the relevant portion of Ind. Trial Rule 4.4(B)(2), a person otherwise subject to the jurisdiction of the courts of Indiana under this rule may be served with summons:
* * *
(2) The person shall be deemed to have appointed the Secretary of State as his agent upon whom service of summons may be made as provided in Rule 4.10.
In addition, T.R. 4.10 provides that:
Whenever, under these rules or any statute, service is made upon the Secretary of State or any other governmental organization or officer, as agent for the person being served, service may be made upon such agent as provided in this rule.
(1) The person seeking service or his attorney shall:
(a) submit his request for service upon the agent in the praecipe for summons, and state that the governmental organization or officer is the agent of the person being served;
(b) state the address of the person being served as filed and recorded pursuant to a statute or valid agreement, or if no such address is known, then his last known mailing address, and, if no such address is known, then such shall be stated;
(c) pay any fee prescribed by statute to be forwarded together with sufficient copies of the summons, affidavit and complaint, to the agent by the clerk of the court.
(2) Upon receipt thereof the agent shall promptly:
(a) send to the person being served a copy of the summons and complaint by registered or certified mail or by other public means by which a written acknowledgment of receipt may be obtained;
(b) complete and deliver to the clerk an affidavit showing the date of the mailing, or if there was no mailing, the reason therefor;
(c) send to the clerk a copy of the return receipt along with a copy of the summons;
(d) file and retain a copy of the return receipt.
With these standards in mind, the Court will now address the parties' arguments.
III. DISCUSSION
From the limited exidence before the Court, it appears that Roberson complied with T.R. 4.10 serving the Secretary of State as the agent of Sherman. He provided it with the last known address of Sherman, which was 144 Sunny Lane, Jackson, Mississippi, 39204. On October 2, 2000, the Secretary of State sent by certified mail a copy of the summons and complaint to Sherman at that address. On the envelope, however, someone marked out that address and wrote in another address in Jackson, Mississippi. There is also handwriting on the envelope that states "notified 10/11." Neither party offers an explanation for what this means, but it appears that the Postal Service notified Sherman of the attempted delivery on October 11, 2000. According to the affidavit of Barbara Gray, Service of Process Clerk for the Secretary of State, the envelope was at some point "Returned to Sender." The Secretary of State then forwarded the envelope — to whom the Court does not know — on October 25, 2000.
Gray attached to her affidavit a copy of the envelope containing the summons and complaint that she affirms was "served" on Sherman. The Court notes the absence in the record of a signed return receipt. It also notes, however, that Sherman has not filed a reply brief or otherwise disputed that he was served by the Secretary of State. Based upon the limited and confusing evidence before the Court, it cannot conclusively determine whether Sherman was actually served. Sherman obviously received notice of the lawsuit at some point because he filed an answer within 120 days after Roberson filed the complaint. But that does not necessarily answer the question of whether he was properly served under the Indiana Trial Rules.
Under FED. R. CIV. P. 4(m), which required Roberson to serve Sherman within 120 days after the filing of the complaint, the Court has discretion to extend the time for service. See Cardenas v. Benter Farms, 2000 WL 1693807, *2 (S.D. Ind. November 7, 2000), citing Panaras v. Liquid Carbonic Indus., 94 F.3d 338, 340 (7th Cir. 1996) and FED. R. CIV. P. 4(m) advisory committee's note (1993 amendments). The advisory committee's notes suggest that an extension may be appropriate if the applicable statute of limitations would bar a later filed action. According to Roberson's complaint, he was injured in an accident with Sherman in August 1998. If the Court were to dismiss his claim against Sherman without prejudice, it would preclude him from refiling the matter against Sherman because of Indiana's two-year statute of limitations for torts. See INDIANA CODE § 34-11-2-4. Accordingly, the Court — in its discretion — allows Roberson forty-five (45) days from the date of this Entry within which to effectuate proper service on Sherman.
IV. CONCLUSION
The Court DENIES Sherman's motion to dismiss. In addition, Roberson shall have forty-five (45) days from the date of this Entry within which to effectuate service of process on Sherman. Roberson's failure to do so will subject to dismissal his claim against Sherman.