Opinion
CIVIL ACTION No. 01-2092-KHV
September 4, 2001
MEMORANDUM AND ORDER
Thomas E. Scherer, a former candidate for political office, filed suit against the City of Merriam, Kansas and various county and state officials. Plaintiff alleges that defendants violated his right to equal protection by removing a political campaign sign from a municipal right of way and failing to later investigate the incident. This matter is before the Court on Defendant City Of Merriam's Motion To Dismiss (Doc. #35) filed June 22, 2001; plaintiff's Motion To Strike Defendant The City Of Merriam Motion To Dismiss (Doc. #37) filed June 28, 2001; plaintiff'sMotion To Reconsider Memorandum And Order Dismissing Defendants (Doc. #41) filed July 9, 2001; plaintiff's Motion To Grant A Stay From The Court Order Dismissing The Defendants, The Kansas Attorney General, The Johnson County District Attorney And The Johnson County Election Commissioner (Doc. #42) filed July 9, 2001; plaintiff's Notice Of Appeal Of A Magistrate Order To The District Judge (Doc. #43) filed July 10, 2001; plaintiff's Motion For The Clerk To Enter A Default Judgment Against The Defendants, The Kansas Attorney General, The Johnson County District Attorney And The Johnson County Election Commissioner For Failure To Answer The Complaint (Doc. #44) filed July 10, 2001. For reasons stated below, the Court sustains the City of Merriam's motion to dismiss and overrules plaintiff's motions.
Plaintiff asks for oral argument and a hearing on his motions. See Motion For A Hearing On Due Process (Doc. #55) filed August 27, 2001. The Court finds that oral argument will not materially assist in the disposition of the instant motions. Accordingly, plaintiff's request for a hearing is overruled.
Factual Background
Plaintiff alleges the following facts:
Plaintiff was a candidate for political office. On February 21, 2001, the City of Merriam removed one of plaintiff's campaign signs because it was in the city right of way, i.e. the area immediately adjacent to the street. The City removed plaintiff's sign pursuant to a city sign ordinance, but it did not remove similarly situated campaign signs.
In a separate action filed with the Kansas Board of Tax Appeals, plaintiff claims that the City does not have a right of way on residential property.
On February 22, 2001, plaintiff attempted to complain to the Merriam Police Department, the Johnson County Kansas Election Board ("JCEB"), Paul Morrison (District Attorney of Johnson County) and Carla Stovall (Attorney General for the State of Kansas). Each of the agencies and individuals "failed to take a report and protect Mr. Scherer's property rights." Civil Complaint (Doc. #1) filed February 23, 2001 at 3.
On February 23, 2001, plaintiff filed suit against the City, JCEB, Connie Schmidt (Johnson County Election Commissioner), Paul Morrison and Carla Stovall. Plaintiff alleges that the City interfered with his rights as a political candidate and that all defendants denied him equal protection under the Fourteenth Amendment to the United States Constitution.
On June 29, 2001, the Court sustained the motion to dismiss of JCEB and Schmidt, based on insufficient service of process and failure to state a claim. See Memorandum And Order (Doc. #38) at 4-7. The Court also sustained the motion to dismiss of Stovall and Morrison, based on sovereign immunity and absolute prosecutorial immunity. See id. at 8-9. On July 5, 2001, the Honorable David J. Waxse, United States Magistrate Judge, overruled plaintiffs' motions to tax the cost of service against all defendants.See Order (Doc. #40).
The City of Merriam asks the Court to dismiss plaintiff's claims for improper service. Plaintiff argues that (1) service on the City was proper, (2) the Court erred by dismissing JCEB, Schmidt, Stovall and Morrison, and (3) the magistrate judge should have awarded him the costs of service.
Discussion
I. City Of Merriam's Motion To Dismiss (Doc. #35)
A. Legal Standards
Pursuant to Rule 12(b)(5), Fed.R.Civ.P., the Court may dismiss a complaint for insufficient service of process. Examples of insufficient service include serving the wrong person or serving an individual not authorized to accept service for defendant. See James Wm. Moore, 2 Moore's Federal Practice 3d § 12.33[4] at 12-54 (3d ed. 1997).
B. Analysis
The City of Merriam asks the Court to dismiss plaintiff's claims for insufficient service of process. Initially, plaintiff argues that under Rule 7(a), Fed.R.Civ.P., the City cannot file a motion to dismiss under Rule 12(b)(5) after it has filed an answer. Rule 7(a) provides in part that there shall be a complaint and an answer but "[n]o other pleading." A motion to dismiss is not considered a "pleading" for purposes of Rule 7(a). The Court therefore rejects plaintiff's argument.
Plaintiff also contends that the Court should strike the City's untimely defense of insufficient service of process. Defendant properly raised insufficiency of service of process, however, in its first responsive pleading. See Answer Of Defendant City Of Merriam, Kansas (Doc. #16) filed April 20, 2001 at 4;cf. Rule 12(h)(1)(B) (defense waived if not included in first responsive pleading or in pre-answer motion to dismiss). Accordingly, the Court declines to strike the defense.
Although Rule 7(a) does not require the Court to strike the City's defense of insufficient service of process, Rule 12(b) arguably precludes the Court's consideration of defendant's motion as one to dismiss. See id. ("A motion making any of these defenses shall be made before pleading if a further pleading is permitted."). Rule 12(h)(1) provides, however, that a defense of insufficiency of service of process is waived if defendant does not assert it in the first responsive pleading or in a pre-answer Rule 12(b) motion. See Flory v. United States, 79 F.3d 24, 25-26 (5th Cir. 1996) (rejecting argument that Rule 12(b)(5) defense is waived if defendant takes other steps in the litigation before filing motion to dismiss). Here, the City timely asserted the defense in its answer. Accordingly, the Court can properly consider the City's motion to dismiss pursuant to Rules 12(c) and 4(m). See Alexander v. City of Chicago, 994 F.2d 333, 336 (7th Cir. 1993) (defendant may use Rule 12(c) motion after close of pleadings to raise various Rule 12(b) defenses regarding procedural defects); Nobriga v. Dalton, No. 94-cv-1972, 1996 WL 294354, at *1-3 (E.D.N.Y. May 28, 1996) (sustaining motion to dismiss pursuant to Rules 12(c) and 4(m) for insufficient service of process; motion filed after answer which asserted defense); see also 2 Moore's Federal Practice § 12.33[2] at 12-52, 12-53 (3d Ed. 1997) ("Pleading insufficiency of process at the first opportunity preserves the objection even if it is not argued before other motions, such as one for summary judgment."). Because the standards for a motion under Rule 12(c) and 4(m) based on insufficiency of service of process are identical to those used for a Rule 12(b)(5) motion to dismiss, the Court overrules plaintiff's objection. See Alexander, 994 F.2d at 336 (under Rule 12(c), courts apply same standard applicable to corresponding Rule 12(b) motion).
A plaintiff may obtain service on a governmental agency (1) "by delivering a copy of the summons and of the complaint to its chief executive officer" or (2) by serving the summons and complaint in the manner prescribed by state law. Fed.R.Civ.P. 4(j)(2). Plaintiff clearly did not comply with the first alternative because he did not personally deliver a copy of the summons or name the chief executive officer of the City of Merriam. Plaintiff also did not comply with service requirements under state law. Under Kansas law, a plaintiff may obtain service on a city by serving the mayor or city clerk. See K.S.A. § 60-304(d). Here, plaintiff attempted to serve The City of Merriam by serving the city attorney. Under Kansas law, "[w]hen the statute designates a particular officer to whom process must be delivered and with whom it may be left, . . . no other officer or person can be substituted in [her] place. The designation of one particular officer upon whom service may be made excludes all others." Knight v. State of Kansas, No. 89-2392-O, 1990 WL 154206, at *2 (D. Kan. Sept. 6, 1990) (quoting Amy v. City of Watertown, 130 U.S. 301, 316-17 (1889)); see Oltremari v. Kan. Social Rehab. Serv., 871 F. Supp. 1331, 1353 (D. Kan. 1994) ("Requiring personal service upon the chief executive officer of a state agency assures that the person in charge of the agency receives the service of process. . . . [A]ctual notice of the suit does not confer personal jurisdiction over the defendant."). Accordingly, the Court dismisses without prejudice plaintiff's complaint against The City of Merriam pursuant to Rule 12(b)(5). See Gregory v. United States Bankruptcy Court, 942 F.2d 1498, 1500 (10th Cir. 1991) ("when a court finds that service is insufficient but curable, it generally should quash the service and give the plaintiff an opportunity to re-serve the defendant.") (quoting Pell v. Azar Nut Co., 711 F.2d 949, 950 n. 2 (10th Cir. 1983)), cert. denied, 504 U.S. 941 (1992). On or before October 12, 2001, plaintiff may re-serve The City of Merriam pursuant to Rule 4 of the Federal Rules of Civil Procedure.
II. Plaintiff's Motion To Reconsider (Doc. #41)
A. Legal Standards
The Court has discretion whether to grant a motion to reconsider. See Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988). The Court may recognize any one of three grounds justifying reconsideration: an intervening change in controlling law, availability of new evidence, or the need to correct clear error or prevent manifest injustice. See Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981); Burnett v. W. Res., Inc., 929 F. Supp. 1349, 1360 (D. Kan. 1996). A motion to reconsider is not a second opportunity for the losing party to make its strongest case, to rehash arguments, or to dress up arguments that previously failed. See Voelkel v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D. Kan.), aff'd, 43 F.3d 1484 (10th Cir. 1994). Such motions are not appropriate if the movant only wants the Court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991), cert. denied, 506 U.S. 828 (1992).
The Court affords a pro se plaintiff some leniency and must liberally construe the complaint. See Oltremari, 871 F. Supp. at 1333. While pro se complaints are held to less stringent standards than pleadings drafted by lawyers, pro se litigants must follow the same procedural rules as other litigants. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992), cert. denied, 507 U.S. 940 (1993). The Court may not assume the role of advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
B. Analysis
1. Dismissal Of JCEB And Schmidt
On June 29, 2001, the Court sustained the motion to dismiss of JCEB and Connie Schmidt (Johnson County election commissioner) based on insufficient service of process and failure to state a claim. See Memorandum And Order (Doc. #38) at 4-7. It therefore dismissed plaintiff's complaint against them. In his motion to reconsider, plaintiff argues that he reached an agreement with the attorney for JCEB and Schmidt regarding service of process. In support, plaintiff attaches copies of e-mails he sent to the attorney and to Schmidt. The Court rejects plaintiff's argument, however, because he failed to raise it in his initial opposition to defendants' motion to dismiss. See Van Skiver, 952 F.2d at 1243. Even if the Court were to evaluate the merit of plaintiff's argument, it would reach the same result. Plaintiff has not shown that the county attorney ever agreed to accept service of process on behalf of JCEB and Schmidt. Plaintiff's version of his conversation with the county attorney, as outlined in the e-mail, is insufficient to show that JCEB and Schmidt waived objection to service of process. In addition, the summons which plaintiff served on the county attorney did not name JCEB or Schmidt, it named only the county attorney. For these reasons, plaintiff's motion to reconsider is overruled.
Plaintiff argues that the Court's prior reliance on United States v. 51 Pieces of Real Property, Roswell, N.M., 17 F.3d 1306, 1313 (10th Cir. 1994), and Ransom v. Brennan, 437 F.2d 513, 518 (5th Cir.), cert. denied, 403 U.S. 904 (1971), was misplaced because those cases involved service of process on individuals, not governmental entities. The Court cited these cases, however, in reference to plaintiff's failure to properly serve Schmidt, an individual. See Memorandum And Order (Doc. #38) at 5. Plaintiff's objection is without merit.
The Court dismissed plaintiff's complaint against JCEB and Schmidt for failure to state a claim because neither defendant is authorized to investigate or prosecute complaints regarding the enforcement of city sign ordinances. See Memorandum And Order (Doc. #38) at 7. Plaintiff argues that the Court's ruling is erroneous because he has several methods of obtaining relief, including (1) removing a public official from office as provided by Kansas law, (2) injunctive relief (3) compensatory damages for the value of the campaign sign and (4) punitive damages for malfeasance by county officials. See Motion To Reconsider Memorandum And Order Dismissing Defendants (Doc. #41) filed July 9, 2001 at 7. As the Court previously explained, however, plaintiff has not stated an underlying claim against JCEB or Schmidt which would support these remedies. See Memorandum And Order (Doc. #38) at 6-7. No state law authorizes JCEB or Schmidt to stop a city from removing a political campaign sign that allegedly violates a local sign ordinance. See id. at 6. Because JCEB and Schmidt lack authority to investigate or prosecute complaints regarding the enforcement of city sign ordinances, plaintiff has failed to state a claim against these defendants. See id. at 7. Even if JCEB and Schmidt had such authority, plaintiff has failed to state an equal protection claim. See id. Accordingly, the Court overrules plaintiff's motion to reconsider with regard to the dismissal of JCEB and Schmidt.
2. Dismissal Of State Defendants
On June 29, 2001, the Court dismissed plaintiff's suit against Carla Stovall (Attorney General for the State of Kansas) and Paul Morrison (Johnson County District Attorney) in their official capacities, based on sovereign immunity and absolute prosecutorial immunity. See id. at 8-9. In his motion to reconsider, plaintiff raises two new arguments. Initially, the Court rejects plaintiff's arguments because he did not raise them in his opposition to defendants' motion to dismiss. Furthermore, plaintiff's arguments are without merit. First, plaintiff criticizes Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 121 S.Ct. 955 (2001), and argues that the Supreme Court's narrow vote in that case "serves as an indication of no consensus to this abrogation of individual rights against a state government by this decision." Motion To Reconsider Memorandum And Order Dismissing Defendants (Doc. #41) filed July 9, 2001 at 2. Plaintiff does not explain how his criticism ofGarrett applies to the facts of this case. To the extent plaintiff suggests that this Court may disregard Supreme Court precedent, his argument is rejected. Second, plaintiff argues that under Garrett, in order for a state to have immunity, it must establish a rationally related legitimate state interest. The Court disagrees. As a starting point, the Eleventh Amendment bars actions for damages against nonconsenting States (or state officials in their official capacities).See Garrett, 121 S.Ct. at 962; Kentucky v. Graham, 473 U.S. 159, 165-167, n. 14 (1985); Riddle v. Mondragon, 83 F.3d 1197, 1201 (10th Cir. 1996). Congress may abrogate the States' Eleventh Amendment immunity when it "both unequivocally intends to do so and acts pursuant to a valid grant of constitutional authority." Garrett, 121 S.Ct. at 962 (quotations and citations omitted). Here, plaintiff has not cited any statute which attempts to abrogate the State of Kansas' Eleventh Amendment immunity. Accordingly, Garrett does not compel a rational-basis review of the actions of the state defendants in this case. Cf. id. at 963-64 (noting that because "States are not required by the Fourteenth Amendment to make accommodations for the disabled, so long as their actions towards such individuals are rational," any special accommodations for disabled must come from positive law and not through Equal Protection Clause). For these reasons and those stated in the Court's previous order, Stovall and Morrison are entitled to dismissal of plaintiff's complaint based on sovereign immunity and prosecutorial immunity.
In sum, the Court overrules plaintiff's motion to reconsider. To the extent plaintiff has raised additional arguments which are not addressed above, the Court rejects them as frivolous or inconsistent with established law as set forth in the Court's previous order.
III. Plaintiff's Motion For A Stay (Doc. #42)
Plaintiff asks for a stay of the Court's Memorandum And Order (Doc. #38) filed June 29, 2001 pursuant to Rule 62(h), Fed.R.Civ.P., so that he can file one appeal as to all defendants. Rule 62(h) is not implicated in these circumstances. Rule 62(h) provides that "[w]hen a court has ordered a final judgment under the conditions stated in Rule 54(b), the court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments." In this case, the Clerk has not entered judgment as to any defendant and the Court has not directed the entry of final judgment. Moreover, Rule 54(b) provides that an order or other form of decision which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties. Absent an order of the Court pursuant to Rule 54(b), plaintiff is entitled to wait until a disposition of the case as to all defendants before he must file an appeal. For these reasons, plaintiff's request for a stay pursuant to Rule 62(h) is overruled.
IV. Plaintiff's Notice Of Appeal Of Magistrate Judge's Ruling (Doc. #43)
A. Legal Standards
Upon objection, the district court may "modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a); see 28 U.S.C. § 636 (b)(1)(A).
B. Analysis
On July 5, 2001, the magistrate judge overruled plaintiffs' motions for taxation of service costs. Plaintiff asks for de novo review of that ruling. As explained above, such matters are reviewed to determine if the ruling was "clearly erroneous or contrary to law." 28 U.S.C. § 636 (b)(1)(A); Fed.R.Civ.P. 72(a).
With regard to the City of Merriam, the magistrate judge properly ruled that Rule 4(d) — the subsection regarding waiver of service — does not apply to service of process upon state or local governments. See Order (Doc. #40) at 3-4. Accordingly, the magistrate judge properly denied plaintiff's motion for costs as to the City of Merriam.
With regard to the other defendants, the magistrate judge properly denied plaintiff's motion for costs because (1) plaintiff did not show that he notified defendants, by means of a text prescribed in an official form promulgated pursuant to Rule 84, Fed.R.Civ.P., of the consequences of compliance and of a failure to comply with the request for waiver of service, and (2) he did not allow defendants a reasonable time to return the waiver of service. See id. at 4-5. Although plaintiff claims that he provided each defendant a proper waiver of service form, he has not shown compliance with the plain requirements of Rule 4(d)(2)(f) (notice and request for waiver shall allow defendant reasonable time to return waiver, which shall be at least 30 days from date request is sent). Accordingly, plaintiff's appeal of the magistrate's order is overruled.
Plaintiff apparently argues that the magistrate judge did not have authority to decide the motion for taxation of costs because plaintiff did not consent to magistrate jurisdiction. Although consent of the parties is required before referral of certain matters such as trial or entry of judgment, see 28 U.S.C. § 636 (c)(2), a magistrate has authority to decide other non-dispositive matters under 28 U.S.C. § 636 (b)(1)(A).
Plaintiff also claims that because Schmidt did not respond to the motion for taxation of costs, the magistrate judge should have sustained it as uncontested. Plaintiff filed two motions for taxation of costs.See plaintiff's Notice Of Service — Summons And Request For Taxation Of Service Costs (Doc. #12) filed April 6, 2001; plaintiff'sMotion For Taxation Of Costs For Service (Doc. #21) filed April 30, 2001. Both JCEB and Schmidt responded to plaintiff's first motion. See Defendant Johnson County Election Board's Response to Plaintiff's Notice Of Service — Summons And Request For Taxation Of Service Costs (Doc. #14) filed April 13, 2001. Because the two motions asked for identical relief, JCEB and Schmidt were not required to file an additional brief in opposition to the second motion.
V. Plaintiff's Motion For Default Judgment (Doc. #44)
With regard to JCEB, Connie Schmidt, Carla Stovall and Paul Morrison, plaintiff asks the Clerk to enter default judgment because they did not file an answer to the complaint. Plaintiff relies on Rule 8(d), Fed.R.Civ.P., which states that all averments in a pleading to which a responsive pleading is required are admitted when not denied in the responsive pleading. Pursuant to Rule 12(a)(4), however, defendants were not required to answer plaintiff's complaint because the Court sustained their motions to dismiss. Accordingly, plaintiff's motion for default judgment is overruled. IT IS THEREFORE ORDERED that Defendant City Of Merriam's Motion To Dismiss (Doc. #35) filed June 22, 2001 be and hereby is SUSTAINED. On or before October 12, 2001, plaintiff may serve The City of Merriam pursuant to Rule 4 of the Federal Rules of Civil Procedure. On or before October 15, 2001, plaintiff shall file a return of service or waiver of service for the City of Merriam.
IT IS FURTHER ORDERED that Motion To Strike Defendant The City Of Merriam Motion To Dismiss (Doc. #37) filed June 28, 2001 be and hereby is OVERRULED. IT IS FURTHER ORDERED that plaintiff's Motion To Reconsider Memorandum And Order Dismissing Defendants (Doc. #41) filed July 9, 2001 be and hereby is OVERRULED. IT IS FURTHER ORDERED that plaintiff's Motion To Grant A Stay From The Court Order Dismissing The Defendants, The Kansas Attorney General, The Johnson County District Attorney And The Johnson County Election Commissioner (Doc. #42) filed July 9, 2001 be and hereby is OVERRULED. IT IS FURTHER ORDERED that plaintiff's Notice Of Appeal Of A Magistrate Order To The District Judge (Doc. #43) filed July 10, 2001 be and hereby is OVERRULED. The magistrate judge's Order (Doc. #40) filed July 5, 2001 is AFFIRMED. IT IS FURTHER ORDERED that plaintiff's Motion For The Clerk To Enter A Default Judgment Against The Defendants, The Kansas Attorney General, The Johnson County District Attorney And The Johnson County Election Commissioner For Failure To Answer The Complaint (Doc. #44) filed July 10, 2001 be and hereby is OVERRULED. IT IS FURTHER ORDERED that plaintiff's Motion For A Hearing On Due Process (Doc. #55) filed August 27, 2001 be and hereby is OVERRULED.