United States District Court, W.D. Tennessee, Western Division
RONALD L. COLLINS, Plaintiff,
WASTE MANAGEMENT, Defendant.
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION
TO DISMISS FOR INSUFFICIENT SERVICE OF PROCESS
K. VESCOVO CHIEF UNITED STATES MAGISTRATE JUDGE.
the court is the October 30, 2017 motion of the defendant,
Waste Management, pursuant to Federal Rules of Civil
Procedure 12(b)(4) and 12(b)(5), to dismiss the complaint
filed by the plaintiff, Ronald L. Collins
("Collins"), proceeding pro se, for
insufficient process and insufficient service of process.
Collins has not responded to the motion, and the time for
response has expired. This case has been referred to the
United States Magistrate Judge for management and for all
pretrial matters for determination and/or report and
recommendation as appropriate. (Admin. Order 2013-05, Apr.
29, 2013.) For the reasons that follow, it is recommended
that Collins's insufficient service be quashed and that
Collins have thirty days to perfect service.
PROPOSED FINDINGS OF FACT
September 22, 2017, Collins, filed a pro se
complaint against the defendant, Waste Management, alleging
race discrimination in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2OOOe et seq.
("Title VII") and age discrimination in violation
of 29 U.S.C. §§ 621-34. (Compl., ECF No. 1.) On
September 29, Collins filed with the court a "Proof of
Service" form, in which he did not fill in any of the
blanks but attached a certified mail receipt indicating that
Cathy Webb ("Webb") signed on behalf of Waste
Management on what appears to be September 26, 2017. (ECF No.
Management filed the current motion to dismiss on October 30,
2017, in which it argues that the court should dismiss
Collins's complaint without prejudice for insufficient
process and insufficient service of process or,
alternatively, quash the insufficient process and service of
process and direct Collins to properly serve Waste
Management. (Def.'s Mem. Supp. Mot. to Dismiss 1, ECF No.
9-1.) Waste Management avers that service of process was
insufficient because Webb, a clerical employee who was not
authorized to receive service of process on behalf of Waste
Management, signed for the certified mail addressed only to
"Waste Management" and that process was insufficient
because the mail contained only a "Summons in a Civil
Action" without a copy of the complaint and also because
Collins did not fulfill the proof of service requirement.
(See Id. at 3-4; Aff. Hank Williams, Jr., ECF No.
9-1.) In the motion to dismiss, Waste Management asserts that
the only agent authorized to receive service of process on
behalf of Waste Management, as identified by the Tennessee
Secretary of State website, is CT Corporation System located
in Knoxville, Tennessee. (Def.'s Mem. Supp. Mot. to
Dismiss 2, ECF No. 9-1.)
to Local Rule 12.1(b), Collins had 28 days to file a response
to Waste Management's Motion to Dismiss; however, no
response was filed.
PROPOSED CONCLUSIONS OF LAW
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)(citations
omitted); see also Omni Capital, Int'l, Ltd. v.
Rudolf Wolff & Co., 484 U.S. 97, 104
(1987)("Before a federal court may exercise personal
jurisdiction over a defendant, the procedural requirement of
service of summons must be satisfied."); Bank One of
Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1081 (6th Cir.
1990) (stating the same) . Courts do not "allow actual
knowledge of a lawsuit to substitute for proper service under
Fed.R.Civ.P. 4." LSJ Inv. Co. v. O.L.D., Inc.,
167 F.3d 320, 322 (6th Cir. 1999); see also Mid-Continent
Wood Prods., Inc. v. Harris, 936 F.2d 297, 301 (7th Cir.
1991)(noting that defendant's actual notice of litigation
is not a substitute for proper service under Rule 4) .
Rule of Civil Procedure 4 governs service of a summons and
complaint in federal courts. Rule 4(h) of the Federal Rules
of Civil Procedure provides that a corporation is properly
served if: (1) service is effected in accordance with state
law in the state where the district court is located or where
service is made, or (2) a copy of the summons and complaint
is delivered to an officer or authorized agent. Id.
Tennessee law provides for service on a corporation by
delivery of the summons and complaint to an officer, managing
agent, or other agent authorized to receive service of
process, Tenn. R. Civ. P. 4.04(4), or by certified mail to an
officer, managing agent, or other agent authorized to receive
service of process, Tenn. R. Civ. P. 4.04(10) . However,
service by certified mail is typically insufficient if the
defendant or an authorized agent does not sign for the mail.
See Dolan v. United States, 514 F.3d 587, 595-96
(6th Cir. 2008)(finding insufficient service where certified
mail receipt was signed by person whose authority was not
shown in the record); Fite v. Comtide Nashville,
LLC, 686 F.Supp.2d 735, 746 (M.D. Tenn. 2010)(quoting
Massey v. Hess, No. 1:05-cv-249, 2006 WL 2370205, at
*2 (E.D. Tenn. Aug. 14, 2006)) ("While the Tennessee
Rules of Civil Procedure permit service by mail, unless the
package is actually received and signed for by the defendant
or his 'authorized agent, ' service of process by
mail delivery is not effective.").
federal law and Tennessee law require a summons to be served
along with a copy of the complaint. Fed.R.Civ.P. 4(c)(1);
Tenn. R. Civ. P. 4.04(3), (10). Service of summons without a
complaint is not effective service. Carimi v. Royal
Carribean Cruise Line, Inc., 959 F.2d 1344, 1345-46 (5th
Cir. 1992)(holding that default was inappropriate where
defendant was served with summons without complaint);
Dividock v. KCAD-FSU, No. 5:05-cv-74, 2005 WL
2090895, at *l-2 (W.D. Mich. Aug. 30, 2005)(finding service
not effective where pro se plaintiff served
defendant with a copy of the summons without a copy of the
complaint); see also 4A Charles Alan Wright &
Arthur R. Miller, Federal Practice & Procedure §
1093, at 677-78 (4th ed. 2015) (stating that even though a
complaint is on file in the clerk's office, service of a
summons without a copy of the complaint is not effective
service). According to Rule 4, "[i]f a defendant is not
served within 90 days after the complaint is filed, the court
- on motion or on its own after notice to the plaintiff -
must dismiss the action without prejudice against that
defendant or order that service be made within a specified
time." Fed.R.Civ.P. 4(m).
the plaintiff must provide proof of service to the court
unless service is waived, and "proof must be by the
server's affidavit" unless there has been service by
a marshal. Fed.R.Civ.P. 4 (1) (1) .
current motion, Waste Management argues that the court should
dismiss the complaint because Collins did not properly serve
Waste Management, or in the alternative, quash service and
direct Collins to perfect service in accordance with Rule 4.
(Def.'s Mem. Supp. Mot. to Dismiss 1, ECF No. 9-1.) Waste
Management argues that service was insufficient under both
federal and Tennessee law because: (1) Collins did not serve
the summons on an agent authorized to receive service of
process on Waste Management's behalf, (2) Collins failed
to serve the complaint along with the summons, and (3)
Collins did not provide proper proof of service.
(Id. at 2-3.)
declaration attached to Waste Management's motion to
dismiss, Hank Williams, Jr. ("Williams"), District
Manager at Waste Management Inc. of Tennessee, avers that
Webb, a clerical employee who is not authorized to receive
service of process on behalf of Waste Management, signed a
certified mail receipt sent by Collins that was addressed
generally to "Waste Management." (Aff. Hank
Williams, Jr., ECF No. 9-1.) Williams also avers that the
certified mail signed for by Webb contained a "Summons
in a Civil Action" issued by the Clerk but did not
contain a copy of the complaint. (Id.) Collins has
not disputed such facts, so this court decides the issue as a
question of law. See LSJ Inv. Co. v. O.L.D., Inc.,
167 F.3d 320, 322 (6th Cir. 1999) (citing Friedman v.
Estate of Presser, 929 F.2d 1151, 1154 (6th Cir.
1991))(noting that where facts are undisputed, determination
of whether service of process is adequate is a question of
law) . Because Collins did not serve a copy of the complaint
that is docketed in this case and because Collins did not
serve a proper officer, managing agent, or other agent
authorized to receive service of process, service is improper
under Federal Rule of Civil Procedure 4(c) (1) and (e), as
well as under Tennessee Rule of Civil Procedure 4.04(3),
Collins has not submitted proof of service to the court by
server's affidavit pursuant to Rule 4(1). See
Fed. R. Civ. P. 4(1) (1) . Although failure to prove service
alone does not affect the validity of otherwise valid service
of process, Collins's service of process here is improper
for the aforementioned reasons. Thus, this court recommends
that the insufficient ...