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Smith v. Parks

United States District Court, E.D. Kentucky, Central Division, Lexington

February 23, 2015

MICHAEL R. SMITH, Plaintiff,
v.
PAUL PARKS, BRAD HISLOPE, and CITY OF HARRODSBURG, Defendants.

MEMORANDUM OPINION AND ORDER

KAREN K. CALDWELL, Chief District Judge.

This matter is before the Court on two motions to dismiss (DE 3 and 5) filed by defendants Paul Parks, Brad Hislope, and the City of Harrodsburg. For the reasons stated below, defendants' motions will be denied without prejudice.

1. Background

On June 5, 2014, plaintiff Michael R. Smith, proceeding pro se, filed a complaint in Fayette Circuit Court against Mercer County Deputy Sheriff Paul Parks, Harrodsburg Police Officer Brad Hislope, and the City of Harrodsburg. (DE 1-3). Plaintiff alleges that he was the victim of racial discrimination by Deputy Parks and Officer Hislope and seeks damages against them and the City of Harrodsburg. He also asserts a malicious prosecution claim against Deputy Parks. At plaintiff's direction, summonses were issued by certified mail to Mercer County Attorney Ted Dean as the service of process agent for each defendant. (DE 1-3, p. 27-30).

On July 1, 2014, defendants timely removed the action to this Court. (DE 1). On November 18, 2014, Officer Hislope and the City of Harrodsburg filed a motion to dismiss asserting a lack of personal jurisdiction due to insufficiency of service of process pursuant to Federal Rules of Civil Procedure 12(b)(2), (4), and (5), as well as a failure to comply with the time limits set forth in Rule 4(m). (DE 3). Deputy Parks then filed a motion to dismiss on the same grounds. (DE 5). Defendants' sole argument is that they have not been properly served because Mercer County Attorney Ted Dean is not the correct service of process agent for any of the defendants and the time period to cure defects in service has lapsed. Plaintiff opposes both motions, arguing that Ted Dean was a proper service of process agent for each defendant and that defendants' removal of the action shows that they had actual notice of the lawsuit. (DE 4, p. 2).

II. Discussion

As an initial matter, the Court must reject plaintiff's argument that defendants waived proper service because they demonstrated actual notice of the suit when they removed case to this Court. The Sixth Circuit has stated that it will not permit actual knowledge of a lawsuit to substitute for proper service of process. See LSJ Inv. Co., Inc. v. O.L.D., Inc., 167 F.3d 320, 322 (6th Cir. 1999); Friedman v. Estate of Presser, 929 F.2d 1151, 1155-56 (6th Cir. 1991). Moreover, the United States Supreme Court has held that a defendant does not waive objections to service of process or personal jurisdiction by removing a state court action to federal court. See Morris & Co. v. Skandinavia Ins. Co., 279 U.S. 405, 409 (1929).

Failure to comply with state service-of-process rules can result in the dismissal of removed cases. See Bates v. Harp, 573 F.2d 930, 933-34 (6th Cir. 1978). "In determining the validity of service [in state court] prior to removal, a federal court must apply the law of the state under which the service was made." 4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1082 (2d ed. 1987). However, after an action is removed, federal law controls, and defects in service must be cured in accordance with the Federal Rules of Civil Procedure. Fed.R.Civ.P. 81(c)(1) (stating that "[t]hese rules apply to a civil action after it is removed from a state court"); 28 U.S.C. § 1448 ("In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court.").

Here, before this action was removed, service of process was controlled by the Kentucky Rules of Civil Procedure. Proper service of process on individuals, like Officer Hislope and Deputy Parks, is governed by Rule 4.04(2) of the Kentucky Rules of Civil Procedure, which provides that:

Service shall be made upon an individual within this Commonwealth, ... by delivering a copy of the summons and of the complaint... to him personally or, if acceptance is refused by offering personal delivery to such person, 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 for such individual.

Ky. R. Civ. P. 4.04(2). It is undisputed that plaintiff did not personally serve Officer Hislope or Deputy Parks, and despite plaintiff's argument to the contrary, nothing suggests that Mercer County Attorney Ted Dean was an agent authorized to accept service on behalf of either defendant. Accordingly, proper service was not effectuated on Officer Hislope and Deputy Parks prior to the removal of this action.

It also appears that the City of Harrodsburg was not properly served before this action was removed. Rule 4.04(7) of the Kentucky Rules of Civil Procedure provides, in pertinent part, that "[s]ervice shall be made upon a city by serving the chief executive officer thereof or an official attorney thereof." Ky. R. Civ. P. 4.04(7). While plaintiff served Mercer County Attorney Ted Dean, he is not the proper service of process agent for the City of Harrodsburg because he is neither the city's chief executive officer nor its official attorney. Mercer County and the City of Harrodsburg do not have a consolidated city-county government. Thus, service of process on Mercer County Attorney Ted Dean did not constitute proper service on the City of Harrodsburg.

Because this action has been removed, the Court must look to the Federal Rules of Civil Procedure to cure the defects in service. See 28 U.S.C. § 1448; Fed.R.Civ.P. 81(c)(1). Federal Rule of Civil Procedure 4 governs the issuance of summonses in this Court. Subsection (m) provides the time limits for service. For cases originally filed in federal court, Rule 4(m) permits service within 120 days after the filing of the complaint. However, in a case removed from state court, the 120-day time period begins to run on the date of removal. See Cowen v. Am. Med. Sys., Inc., 411 F.Supp.2d 717, 721 (E.D. Mich. 2006) (holding that "in a case removed from state court, the time [in Rule 4(m)] begins to run on the date of removal"); Bruley v. Lincoln Prop. Co., N.C., Inc., 140 F.R.D. 452, 453 (D. Colo. 1991) (holding that the "120 day period for serving process starts to run on the date of removal rather than the date the state complaint was filed"). This case was removed on July 1, 2014, and no other service of process has been issued or completed so the 120-day period to effectuate service has passed. However, Rule 4(m) allows a district court to extend the time for proper service. In relevant part, Rule 4(m) provides:

If a defendant is not served within 120 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. But if the plaintiff shows good cause for the ...

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