United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION AND ORDER
GREG N. STIVERS, District Judge.
This matter is before the Court on Defendant's Motion to Dismiss (Def.'s Mot. to Dismiss, DN 21). This motion is ripe for a decision, and for the reasons stated below, the Court GRANTS Defendant's Motion.
On November 20, 2014, Plaintiffs Jerri LaMark Carver ("Carver"), Mary Inez Carver ("M. Carver"), and Willie Louis Wells ("Wells") filed a pro se complaint alleging racial discrimination in violation of the Civil Rights Act and discrimination on the basis of disability in violation of the Americans with Disabilities Act. (Compl., DN 1). Plaintiffs also alleged that Defendant violated the Uniform Power of Attorney Act, failed to pursue the Home Affordable Modification Program, violated a court order, and engaged in predatory lending. (Compl., DN 1).
On February 27, 2015, Carver filed an Amended Complaint (Am. Compl., DN 15) with the Court's permission (Order, DN 14). On April 15, 2015, the Court entered a Memorandum Opinion and Order granting summary judgment to Citifinancial as to all claims alleged in the original Complaint, which dismissed all claims alleged by M. Carver and Wells. (Mem. Op. & Order, DN 20).
On April 17, 2015, Citifinancial filed a Motion to Dismiss seeking to dismiss the Amended Complaint. (Def.'s Mot. for Summ. J., DN 21). A response to this motion was due on May 11, 2015, per Local Rule 7.1(c). Carver did not file a timely response. The motion is thus ripe for review.
The complaint in this matter alleges violations of federal law. This Court has "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.
III. STANDARD OF REVIEW
The plaintiff bears the burden of perfecting service of process and showing that proper service was made. Sawyer v. Lexington-Fayette Urban Cnty. Gov't, 18 F.Appx. 285, 287 (6th Cir. 2001).
In its Memorandum in Support of Its Motion to Dismiss, Citifinancial alleges that Carver improperly served it in two ways: 1) by serving a branch of Citifinancial in Louisville, Kentucky, rather than serving its designated agent for service of process through the Kentucky Secretary of State; and 2) by serving the Summons and Complaint himself. (Mem. in Supp. of Def.'s Mot. to Dismiss 5-8, DN 21-1 [hereinafter Mem. in Supp.]).
Federal Rule of Civil Procedure 4(h)(1) states that a corporation must be served, in a judicial district in the United States, in one of two ways: in accordance with Federal Rule of Civil Procedure 4(e)(1); or "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process...." Fed.R.Civ.P. 4(h)(1)(A)-(B). Federal Rule of Civil Procedure 4(e)(1) states that an individual may be served in accordance with state law where the district court is located or the service is made. Fed.R.Civ.P. 4(e)(1). Citifinancial states that neither an officer, a managing agent, a general agent, nor any other agent authorized by appointment or law to receive service of process for Citifinancial resides at that address. (Mem. in Supp. 6). Because service was not obtained pursuant to Rule 4(h)(1)(A), Carver was required to serve Citifinancial pursuant to Kentucky law regarding service of process on corporations pursuant to Rule 4(h)(1)(B) and 4(e)(1).
Kentucky Rule of Civil Procedure 4.04(5) dictates that a corporation must be served by "serving an officer or managing agent thereof, or the chief agent in the county wherein the action is brought, or any other agent authorized by appointment or by law to receive service on its behalf." Citifinancial asserts that the Louisville location is not its principal office, its registered agent for service of process is not there, and it does not represent the address of any officer. (Mem. in Supp. 6). Because ...