United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER ON MOTION TO DISMISS OR,
ALTERNATIVELY, TO ABSTAIN
BOOM, DISTRICT JUDGE
matter is before the Court on Defendant Managed Staffing,
Inc's (“Managed Staffing”) Motion to Dismiss
or, Alternatively, to Abstain [R. 20]. For the reasons
explained below, the Court will deny the motion without
prejudice and with leave to refile.
Motion to Dismiss
defendant moves to dismiss this case pursuant to Fed.R.Civ.P.
12(b)(4). It points out that “[t]he summons filed with
the Court (which is the same as that served upon [the
defendant]) did not comply with [Fed. R. Civ. P.] 4(a)(1)(F)
and (G) because it was not signed by the Clerk of this Court,
nor did it bear the seal of this Court.” [R. 20 at p.
2] Defendant argues that these deficiencies show
“disregard for the requirements of the federal
rules” and should therefore not be considered curable.
Id. at p. 3. The plaintiff's threadbare response
is that 28 U.S.C. §1448 allows either completion of
service or issuance of new process after removal, and that
here, the plaintiff “simply completed process.”
[R. 21 at pp. 2-3] It also states that “[p]ointedly, in
this matter, a summons had already been issued, multiple
pleadings filed in the case [sic], previous service attempts
[sic] TKT simply completed service process [sic] as provided
by 28 U.S.C. §1448.” Id. at p. 3.
Court rejects the plaintiff's argument that it properly
served process on the defendant. The summons filed with the
Court at [R. 19] could not possibly have been completion of
state court process, both because it is not on a summons form
issued by the state court but rather is on AO440 (the form
for summons in a civil action filed in federal court), and
because - as with the penultimate attempt - it “was
addressed neither to the Secretary of State [of Kentucky],
nor to anyone found within the state of Kentucky.” [R.
18 at p. 3; R. 19] Aside from the text of 28 U.S.C.
§1448 (which does nothing to advance plaintiff's
argument), plaintiff has not cited to any authority in
support of its position to the contrary.
the Court will decline to dismiss the case pursuant to
Fed.R.Civ.P. 12(b)(4). It is true that the Court previously
stated that it would entertain a motion to dismiss this
action without prejudice if proper service was not served by
November 30, 2018. [R. 18] However, the Court is not yet
convinced that the plaintiff's failure to serve proper
process demonstrates disregard for the federal rules. The
plaintiff has served new process which appears to suffer from
basic but technical defects which are easily remedied. As
previously noted, “Fed. R. Civ. P. 4(m) provides for
additional time for a plaintiff to properly serve a defendant
even where service has not been timely made” in the
Court's discretion, and “the better practice is to
quash insufficient service of process unless it is clear that
the plaintiff cannot effect proper service.” [R. 18 at
p. 5] It is still not clear to the Court that the plaintiff
cannot effect proper service, and despite the lack of good
cause shown, it appears that the deficiencies in service are
still not prejudicial to the defendant. The Court will
therefore again exercise its discretion under Fed.R.Civ.P.
4(m) to allow the plaintiff an additional chance to properly
serve new process on the defendant pursuant to Federal Rule
of Civil Procedure 4. The plaintiff is advised to obtain
summons issued by the Clerk of this Court, bearing both the
Clerk's signature and the seal of the Court, and then
serve process as it did with the previous attempt. (As the
defendant's only objection was to the deficiencies with
the clerk's signature and the court's seal, the Court
construes this as a waiver of any other objections to the
defendant's latest attempt at service.) However, the
plaintiff is further advised that the Court will not grant
endless chances to effect service. The denial of the motion
to dismiss is without prejudice and with leave to refile
should proper service not be effected in accordance with the
Motion to Abstain
defendant asks that if the Court does not dismiss this action
pursuant to Fed.R.Civ.P. 12(b)(4), that it alternatively
“abstain from hearing this action due to the pending,
previously filed Texas state court action.” [R. 20 at
p. 4] While it is true that “extraordinarily rare[ly],
” it is appropriate for federal courts to abstain from
exercising their jurisdiction due to the pendency of a
similar state court action, Total Renal Care, Inc. v.
Childers Oil Co., 743 F.Supp.2d 609, 613 (E.D. Ky. 2010), it
is apparent that this motion is not yet ripe. The defendant
itself argues that the defects in service (the absence of the
signature of the Clerk of Court and the seal of the Court)
means that “this Court still lacks personal
jurisdiction over” the defendant. [R. 20 at p. 2] The
Court cannot abstain from exercising what it does not have.
Without personal jurisdiction, this Court is powerless to
hear this case, and abstention is a pointless inquiry. As
outlined above, the Court in its discretion is giving the
plaintiff another chance to effect proper service on the
defendant. Hopefully, proper service will be effected this
time, but that is by no means a foregone conclusion.
Accordingly, the Court will deny the motion to abstain
without prejudice and with leave to refile after such time as
proper service is effected (thereby clearing up the issue the
defendant has raised as to personal jurisdiction).
having reviewed the Motion, and the Court being otherwise
sufficiently advised, IT IS HEREBY ORDERED as follows:
defendant's Motion to Dismiss [R. 20] is DENIED without
prejudice and with leave to refile should proper service not
be effected in accordance with the Court's order. The
defendant's Motion to Abstain [R. 20] is DENIED without
prejudice and with leave to refile after such time as proper
service is effected.
plaintiff is GRANTED an extension of time up to and including
Thursday, June 20, 2019, within which to ...