United States District Court, E.D. Tennessee
MEMORANDUM OPINION AND ORDER
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE.
civil action is before the Court on defendant's Motion to
Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(5)
and 4(m) [Doc. 7]. Plaintiff responded opposing this motion
[Doc. 9], and defendant replied [Doc. 10]. The parties have
also filed further supplemental briefs pursuant to Local Rule
7.1(d) [Docs. 12-13]. Defendant's motion to dismiss is
therefore fully briefed and ready for disposition.
See E.D. Tenn. L.R. 7.1(a). For the reasons
explained below, the Court will deny defendant's motion.
case concerns allegations of disability discrimination in
violation of the Americans with Disabilities Act of 2008 (the
“ADA”), 42 U.S.C. § 12101 et seq.,
and the Rehabilitation Act of 1973, 29 U.S.C. § 701
the Tennessee Valley Authority (“TVA”), is an
executive branch corporate agency and instrumentality of the
United States, created by and existing pursuant to the TVA
Act of 1933, 16 U.S.C. § 831 et seq. [Doc. 8 p.
1]. Plaintiff, a resident of Hamilton County, Tennessee,
asserts that he was defendant's “employee”
within the meaning of the ADA at all times relevant to this
action [Doc. 1 ¶¶ 2, 4]. Plaintiff began his
employment with defendant in 1997, and, by 2013, he was
working as a Backup Administrator in its information
technology division [Id. ¶ 9]. Plaintiff
alleges that he suffered multiple traumatic injuries as a
result of motor vehicle accidents in 1982 and 1995, including
several fractured and broken bones, a spinal injury, and a
compromised immune system [Id. ¶¶ 7-8].
Plaintiff further asserts that, by January 2013, he was
suffering from scoliosis, a bulging disc, fused vertebrae,
fused ribs, carpel tunnel syndrome, arthritis, sleep apnea,
and severe testosterone deficiency [Id. ¶ 10].
Plaintiff submits that these conditions limited his ability
to sit, lift, carry, walk, stand, reach, and perform other
manual tasks, in addition to causing him severe and chronic
pain [Id. ¶ 11].
result of these conditions, plaintiff began receiving
treatment from a pain management physician [Id.
¶ 12]. Plaintiff alleges that, in 2013, he completed
Family and Medical Leave Act (“FMLA”) paperwork
to cover absences caused by these conditions and submitted a
letter from his physician explaining that he was in
compliance with his pain management regimen and would be able
to continue working [Id. ¶¶ 14-15].
Plaintiff asserts, however, that he received conflicting
statements from defendant as to whether he could continue
working while taking his prescribed medications [Id.
¶ 14]. Plaintiff further alleges that defendant forced
him to undergo a fitness for duty (“FFD”)
examination after completion of his FMLA certification and
treated him differently than other employees by not
permitting him to work remotely [Id. ¶¶
16-17]. Plaintiff also asserts that, when he had to secure an
alternative provider after his physician downsized her
practice, defendant required an additional FMLA certification
and FFD examination [Id. ¶¶ 18-19].
plaintiff asserts that his manager, Stephen Avans, required
him to undergo yet another FFD examination for what plaintiff
later discovered to be false and discriminatory reasons
[Id. ¶¶ 20-21]. Plaintiff alleges that
defendant then informed him he would not be able to continue
working while taking his prescribed medication, despite
plaintiff having successfully performed his duties while on
the same or similar regimen of pain control for over a decade
[Id. ¶ 23]. Plaintiff also asserts that
defendant refused to consider the fact that “any
misperception as to his alertness and ability to perform his
duties” may have been due to an interruption in his
testosterone medication resulting from a change in
defendant's insurance coverage [Id. ¶ 24].
Plaintiff thus asserts that his employment was terminated as
a result of an ADA-covered disability [Id. ¶
originally filed a charge of disability discrimination
against defendant with the United States Equal Employment
Opportunity Commission (“EEOC”) on July 9, 2014
[Doc. 9-1 p. 5]. After 180 days passed without a final
decision from the EEOC, plaintiff withdrew his request for a
hearing and provided notice of his intent to file suit in
federal court [Id.]. Then, on December 11, 2016,
plaintiff filed this action against defendant, alleging that
defendant unlawfully discriminated against him by (1)
terminating him because of his disability, and (2) failing to
provide him with a reasonable accommodation [Id.
¶¶ 27-28]. Plaintiff named TVA President and Chief
Executive Officer William D. Johnson as the defendant, in his
Clerk of Court issued a summons as to Johnson the next day,
December 12 [Doc. 2]. However, plaintiff took no further
action in this case until March 31, 2017, when he moved for a
thirty-day extension of time to serve process [Doc. 3].
Plaintiff submitted that during the week after the filing of
his complaint, he underwent an emergency surgical procedure
and, in light of the uncertainty of his recovery, it was
unclear whether the case should proceed [Id. at 1].
But plaintiff further submitted that his condition had since
improved, that he intended to proceed with this action, and
that he was serving process on defendant contemporaneously
with his motion [Id. at 1-2]. On April 4, Magistrate
Judge Susan K. Lee entered an order granting plaintiff's
motion [Doc. 4]. On May 4, plaintiff's counsel filed an
affidavit stating he had served the summons and complaint on
R.D. Smith, an agent for TVA General Counsel Sherry A. Quirk,
by certified mail [Doc. 6]. Plaintiff's counsel attached
a certified mail receipt demonstrating that Smith received
delivery of the summons and complaint on Quirk's behalf
on April 3 [Doc. 6-1].
26, defendant filed the instant motion to dismiss due to
insufficient service of process, pursuant to Federal Rule of
Civil Procedure 12(b)(5) [Doc. 8]. In this motion, defendant
argues that the means of service described above are improper
under Rule 4(i), which sets out the requirements for service
of process on an officer or employee of a United States
corporation sued in an official capacity. Plaintiff responded
on June 5, arguing that (1) plaintiff's counsel's
method of service should be deemed sufficient, given his past
course of dealing with TVA, and (2) alternatively, the Court
should permit a second extension of time to effect proper
service [Doc. 9]. Defendant replied on June 12 [Doc. 10].
Then, on June 27, plaintiff's counsel filed an affidavit
and supporting documentation showing he had completed service
by certified mail on the U.S. Attorney for the Eastern
District of Tennessee on June 15, and on the U.S. Attorney
General in Washington, D.C., on June 19 [Docs. 11, 11-1,
11-2, 11-3, 11-4]. Plaintiff then filed a supplemental brief
informing the Court that, in his view, service of process was
now properly accomplished under Rule 4(i), albeit outside the
thirty-day extension granted by Magistrate Judge Lee [Doc.
12]. Defendant responded that the Court should not consider
such service effective and should instead dismiss
plaintiff's complaint [Doc. 13].
Rule of Civil Procedure 12(b)(5) authorizes courts to dismiss
an action for insufficient service of process. Such a motion
“is the proper vehicle for challenging the mode of
delivery or the lack of delivery of the summons and
complaint.” 5B Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1353
(3d ed. 1998). “Due process requires proper service of
process for a court to have jurisdiction to adjudicate the
rights of the parties.” O.J. Distrib., Inc. v.
Hornell Brewing Co., 340 F.3d 345, 353 (6th Cir. 2003).
The plaintiff is responsible for serving the summons and
complaint in accordance with Federal Rule of Civil Procedure
4 and, in particular, within the time permitted by Rule 4(m).
See Fed. R. Civ. P. 4(c)(1). “[A]ctual
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). Indeed,
rather than being “some mindless technicality, ”
proper service of process is an essential prerequisite to the
Court gaining personal jurisdiction over the defendant.
Friedman v. Estate of Presser, 929 F.2d 1151, 1156
(6th Cir. 1991) (quoting Del Raine v. Carlson, 826
F.2d 698, 704 (7th Cir. 1987)).
parties appear to agree that Rule 4(i) governs service of
process on defendant [See Doc. 8 p. 3; Doc. 12 pp.
1-2]. First, to serve an officer of a U.S. corporation sued
solely in an official capacity, the plaintiff must both (1)
serve the United States itself, and (2) send the summons and
complaint to the officer by registered or certified mail.
Fed.R.Civ.P. 4(i)(2). Second, to serve the United States, the
plaintiff must (1) send the summons and complaint by
registered or certified mail to the U.S. Attorney General in
Washington, D.C., and (2) either (a) deliver the summons and
complaint to the U.S. Attorney for the district where the
action is brought, or (b) send the summons and complaint by
registered or certified mail to the civil-process clerk at
the U.S. Attorney's office. Fed.R.Civ.P. 4(i)(1)(A)-(B).
Therefore, to properly complete service of process in this
case, plaintiff was required to serve the U.S. Attorney
General, the U.S. Attorney for the Eastern District of
Tennessee, and the named defendant, TVA President and CEO
William D. Johnson, all within the time period provided by
Rule 4(m) provides as follows:
If a defendant is not served within 90 days after the
complaint is filed, the court . . . must dismiss the action
without prejudice against that defendant or order that
service be made within a specified time. But if the plaintiff
shows good cause for the failure, the ...