The opinion of the court was delivered by: Judge Curtis L. Collier
Defendants D.L. Hess and Kathleen Oelschlegel ("Defendants"), through counsel, filed a motion to dismiss contending they have not been served in accordance with the Federal Rules of Civil Procedure (Court File No. 35). Defendants filed a brief in support of their motion (Court File No. 36) and Plaintiffs Susan Massey and William Scott Massey ("Plaintiffs") filed a response in opposition (Court File Nos. 39, 40). Plaintiffs argue service was proper, but in the event the Court finds service inadequate, Plaintiffs request additional time in which to properly serve Defendants.
For the following reasons, the Court will DENY Defendants' motion to dismiss (Court File No. 35) and GRANT Plaintiffs an extension of time under Rule 4(m) to effect service of process upon Defendants.
Defendants are employed by the Prince William County, Virginia Police Department as detectives in the crimes against children unit, criminal investigation division (Court File No. 41). On September 13, 2005 Plaintiffs filed a complaint against Defendants, in their individual and official capacities,*fn1 and others alleging their constitutional rights were violated as guaranteed by the provisions of 42 U.S.C. § 1983 (Court File No. 1, Complaint). Plaintiffs attempted to serve Defendants by sending a copy of the summons and complaint through certified mail to the police station where Defendants are employed. The summons and complaint were received and signed for by an employee of the Prince William County Police Department, Maria Hooper*fn2 (Court File Nos. 8, 9).
On November 1, 2005 Defendants filed an answer to the complaint (Court File No. 16, Answer). In the answer Defendants assert a "defense of insufficiency of service of process . . . in that the service of process in this case was not accomplished by personal service pursuant to Rule 4(e)(2)"(Id. at p. 5) (emphasis removed from original). On May 31, 2006 Defendants filed the current motion contending service was improper and as a result the complaint filed against them should be dismissed.
A. Insufficiency of Service of Process
Rule 12(b)(5) of the Federal Rules of Civil Procedure provides a complaint may be dismissed for "insufficiency of service of process." Fed. R. Civ. P. 12(b)(5). Whether service was insufficient in this case requires reference to Federal Rule of Civil Procedure 4. Rule 4(e) states:
Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or an 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 of the State; or
(2) by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e). Plaintiffs have not accomplished valid service through Rule 4(e)(2). The parties agree the copies of the summons and complaint were not delivered personally to Defendants (Court File No. 36, p. 1; Court File No. 40, p. 2, 40). Also, the copies were not left at either of Defendants' homes with a person of suitable age and discretion. Rather, copies of the complaint and summons were mailed to Defendants at their place of employment and received by Ms. Hooper. Neither party has presented any evidence Ms. Hooper is an authorized agent of Defendants. See Dortch v. First Fidelity Mortgage Co. of Mich., Inc., 8 Fed. App'x 542, 546 (6th Cir. 2001) (unpublished) (holding service upon the chief executive officer who was being sued in his individual capacity was improper where the copies were sent by certified mail to the chief executive officer's place of employment and signed for by the treasurer of the company).
Plaintiffs argue service is proper because Defendants have actual knowledge of the suit and because Defendants filed an answer to the complaint. The United States Court of Appeals for the Sixth Circuit has instructed "actual knowledge and lack of prejudice cannot take the place of legally sufficient service." LSJ Inv. Co. v. O.L.D., Inc., 167 F.3d 320, 324 (6th Cir. 1999). Further, since Defendants raised a defense of insufficiency of service of process in their responsive pleading, it is ...