White v. Capio Partners, LLC, No. 1:2015cv00120 - Document 10 (S.D. Ga. 2015)
Court Description: ORDER denying 6 Motion to Dismiss; denying 9 Motion for Extension of Time. Signed by Judge J. Randal Hall on 10/13/2015. (thb)
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White v. Capio Partners, LLC Doc. 10 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION LEVI WHITE, * * Plaintiff, * * v, CAPIO PARTNERS, LLC, l:15-cv-120 Defendant. * * * ORDER Presently before the Court are two motions The first is Defendant's motion to dismiss filed too soon. for insufficient service of process and lack of personal jurisdiction. (Doc. 6). The to second is Plaintiff's until January 12, 2016. motion (Doc. 9). to extend the time serve In a case removed to federal court, Federal Rule of Civil Procedure 4(m) provides 120 days to serve a Because dismiss defendant that deadline the has day not that expired, the case was Defendant's removed. motion to is denied. For his part, his from motion he Plaintiff appears unaware that when he filed already Defendant. Therefore, had until December 4, 2015 to serve the Court finds that Plaintiff's requested extension is unnecessary and denies his motion as well. Dockets.Justia.com I. BACKGROUND The following complaint, to that Defendant's motion, serve. factual and Plaintiff assertions motion to dismiss, Plaintiff's Levi come White, own from Plaintiff's Plaintiff's motion to proceeding extend pro se, response time filed complaint against Defendant Capio Partners, LLC on June 5, in the Magistrate Court of Richmond County, Georgia. Removal, Doc. Corporation registered Doc. 1, 1, Ex. 2) . Service agent Ex. At that time, Company, who for of PL's 2; service Resp. Br., he In 2008, Doc. 8 5 6). process. 8 was (Notice 5 6). He Defendant's of Removal, found their (Def. Br., registered Corporation System, 30361. supported by Doc. 6 at 3) . agent for service located at 1201 Peachtree (Id.). According Plaintiff's response to Soon after, Doc. of brief, they in Georgia, process St. NE, Defendant's Corporation System has never been attempted. Br., (PL's But this was a mistake. registered as a foreign corporation doing business Georgia this Defendant left Georgia and became a Texas limited liability company. listing 2015 (Notice of information on the Georgia Secretary of State's website. Response Br., his he attempted service on believed Doc. to as Atlanta, brief, service CT on and CT (Id.; PL's Resp. 8). On July 13, 2015, unspecified source. Defendant received this lawsuit from an (Notice of Removal, Doc. 1 SI 5) . 2 Of course, learning of a pending lawsuit does not equate process. to And so, federal court to dismiss. on August 6, 2015, and, on August in 17th, filed the (Id.; Def.'s Mtn. to Dismiss, short order. his complaint. First, (Doc. 7) . two days Second, Doc. September 16th, Plaintiff extension to serve Defendant. instant motion Plaintiff took three Plaintiff amended Plaintiff filed his response filed (Doc. of 6). later, brief in opposition to Defendant's motion. on service Defendant removed the case After receiving the motion to dismiss, steps with a (Doc. 8). motion 9). for Finally, a 120 day Defendant did not file a brief in opposition to Plaintiff's motion. II. DISCUSSION "A plaintiff is responsible for serving the defendant with a summons [Federal Carroll Civ. P. and Rule Cnty. the of to Civil Comr's, 4(c)(1); sufficient complaint 476 4(m)). cure within Procedure] F.3d "A 1277, the 4(m)." executed allowed under Lepone-Dempsey 1280-81 defendant's defectively time (citing actual notice service." Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007). Fed. is Albra v. R. not v. "And although we are to give liberal construction to the pleadings of pro se litigants, Ve nevertheless have required them procedural rules.'" Id. 1304 (11th Cir. 2002). to conform to (quoting Loren v. Sasser, 309 F.3d 1296, In cases removed from state courts, the sufficiency of service of process attempted before removal is governed by state law. Ga. See Rentz v. Swift Transp. 1998) Co., 185 F.R.D. 693, 696 (M.D. ("In actions removed from state court, the sufficiency of service of process prior to removal is determined by the law of the state from which the action was removed."). has been removed attempts to 81(c)(1). case serve federal process. Additionally, that Rule a to was removed to 989 F. federal Ford Motor Co. , No. n. 4 (N.D. Ala. 1643364, 2010 Kimbrough v. at *1 (M.D. 1137 (4th ed. court. 1475, 2013); 1448; Ritts 1478-79 governs Fed. WL 476673, Fla. 2015) June 6, Miller, ("In v. R. Dealers (N.D. Ga. 2013 WL Buckley v. at City of Cocoa, Allen Wright & Arthur R. § § 2:12-cv-1086-WKW, June 25, l:09-cv-1387-TWT, 2010); U.S.C. law future Civ. P. many courts in this Circuit have found Supp. v. 5, 28 federal 4(m)'s 120-day period for service begins upon the day Credit Corp., No. court, Once a case Alliance 1997); 3280325, Bayrock Mortg. *4 No. 2006); n.6 Salle (N.D. at *5 Corp., Ga. Feb. 6:05-CV-471, 2006 WL see Charles also 4B Federal Practice and Procedure removed cases, the Rule 4 (m) time period starts to run upon removal to the federal district court, not the Court not date agrees commence court. the action was that until originated in state court") . The Rule 4(m)'s 120-day service requirement does the notice of removal is filed in district Defendant's motion to dismiss addresses only one aspect of service: the deficiency on whom it was served. Plaintiff responded in kind by only addressing why he served Defendant's former registered agent. Neither party discussed whether the deadline to serve under Rule 4(m) had expired. Any ruling on whether Rule 4(m)'s deadline has passed necessarily requires the Court to decide whether the previously attempted service was in was the case the sufficiency of sufficient. state court that when service is As discussed Plaintiff above, attempted governed by Georgia because service, law. In attempted to pertinent part, O.C.G.A. § 9-11-4 (e) provides: (e) . . . Service shall be made by delivering a copy of the summons attached to a copy of the complaint as follows: (1) (A) If the action is against ... a foreign corporation authorized to transact business in this state, to the president or other officer of such corporation or foreign corporation, a managing agent thereof, or a registered agent thereof .... O.C.G.A. § 9-11-4 (e) (emphasis added). Plaintiff serve Defendant's registered agent; however, he served a former registered agent. Therefore, as a matter of Georgia law, Plaintiff's attempted service was insufficient. Having concluded that Plaintiff has yet to properly serve Defendant, the Court now turns to whether the deadline to do so has expired under Rule 4(m) . As discussed above, because this case was removal 989 4, removed, to serve Plaintiff has Defendant. F. Supp. at 1478-79. 2015 to serve 120 Fed. R. Because Defendant, days Civ. from P. 4(m); Plaintiff has Defendant's the motion notice e.g. until to of Ritts, December dismiss is DENIED. The serve. Court now turns Plaintiff's to motion Plaintiff's motion requested an including January 12, 2016." (Doc. 9). the is current service deadline to extend time to extension "up to and As the Court finds that December 4, 2015, Plaintiff's requested extension is unnecessary and is DENIED. ORDER ENTERED at Augusta, October, Georgia, this / «Z^ "tiay of 2015. HON LE^ UNITED -STATES SOUTHERN KANDAL HALLV DISTRICT DISTRICT JUDGE OF GEORGIA
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