UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

VERONICA RAYNOR, Individually and as the : Personal Representative of the : Estate of Reuel Griffin, : : Plaintiff, : Civil Action No.: 14-0750 (RC) : v. : Re Document No.: 106 : DISTRICT OF COLUMBIA, et al., : : Defendants. :

MEMORANDUM OPINION

DENYING DEFENDANT BERNADEAN GREENE’S MOTION TO DISMISS

I. INTRODUCTION

On April 29, 2014, Plaintiff Veronica Raynor filed this action against the District of

Columbia and several other defendants, including Bernadean Greene, based on the death of

Reuel Griffin at Saint Elizabeth’s Hospital in 2012. See generally Compl., ECF No. 1.

However, in the more than two years after Ms. Greene was supposedly served and this case was

being actively litigated, neither side seemed to notice that Ms. Greene had not actually responded

to the Complaint. This case now comes before the Court on Ms. Greene’s Motion to Dismiss

under Rule 12(b)(5) of the Federal Rules of Civil Procedure for insufficient service of process.

For the reasons stated below, the Court denies Defendant’s Motion to Dismiss without prejudice.

II. FACTUAL BACKGROUND

On April 29, 2014, Veronica Raynor filed a Complaint against the District of Columbia

and several other defendants, including Ms. Greene, alleging that they negligently caused the death of Reuel Griffin on January 31, 2012. See generally Compl. Ms. Raynor claims that,

beginning in August 2014, she attempted to identify Ms. Greene’s home address in order to

properly serve her with the Complaint. See Pl.’s Opp’n to Def.’s Mot. Dismiss (“Pl.’s Opp’n”)

at 2, ECF No. 108. Although the District of Columbia provided Ms. Raynor with Ms. Greene’s

supposed address, it later proved incorrect. See Pl.’s Opp’n at 2. Thereafter, Ms. Raynor

requested that the District provide Ms. Greene’s social security number so that a private

investigator might use it to locate her. See Pl.’s Opp’n at 2. The District initially denied the

request and instead provided a second address, but that too was incorrect. See Pl.’s Opp’n at 2.

As a result, and after several more requests from Ms. Raynor, the District finally agreed to

provide Ms. Greene’s social security number. See Pl.’s Opp’n at 2. Through investigative

methods not revealed to the Court, Ms. Raynor’s private investigator determined that Ms. Greene

“reside[d] with her sister . . . at 4714 Alabama Avenue, SE, Washington, DC,” Pl.’s Opp’n, Ex.

A, and, on July 13, 2015, a process server left the summons and a copy of the Complaint with

Ms. Greene’s sister at that address, See Pl.’s Opp’n at 2.

Ms. Greene, however, never answered or otherwise responded to Ms. Raynor’s

Complaint. But, Ms. Raynor apparently failed to notice because she never filed a motion for

default judgment. Nevertheless, in November 2016—more than a year later—defense counsel

entered appearances on behalf of “all defendants,” without exception, and proceeded to file

papers with this Court on their behalf, including Ms. Greene—though defense counsel now

claims that this was in error. These filings include various notices, status reports, a motion to

stay, as well as a motion to compel discovery and an opposition to a motion to compel. See ECF

Nos., 70–72, 77, 83, 85, 88, 90, 93–94, 103, 105. Then, on July 20, 2017, Ms. Greene filed a

motion to dismiss the Complaint for insufficient service of process because, according to her, she

2 did not reside at 4717 Alabama Avenue SE at the time the summons and Complaint were

delivered to that address. See generally Def.’s Mot. Dismiss, ECF No. 106; Greene Decl. at ¶ 2,

ECF. No. 106-1.

III. ANALYSIS

For the reasons explained below, the Court finds Plaintiff has not met her burden in

establishing proper service of process on Ms. Greene and that Ms. Greene did not waive service

of process through the errant filings of her counsel. Nevertheless, the Court finds that good

cause exists to allow Plaintiff additional time to properly effect service of process. Accordingly,

the Court denies Ms. Greene’s Motion to Dismiss without prejudice and subject to renewal.

Additionally, Plaintiff is ordered to effect service on Ms. Greene within 30 days.

A. Service of Process

“Before a federal court may exercise personal jurisdiction over a defendant, the

procedural requirement of service of summons must be satisfied.” Omni Capital Int'l, Ltd. v.

Rudolf Wolff & Co.,

(1987); accord Gorman v. Ameritrade Holding Corp.,

(D.C. Cir. 2002). However, when the propriety of service is challenged, it is the

plaintiff that “bears the burden of proving that she has effected proper service.” Jouanny v.

Embassy of France in the United States,

, 37–38 (D.D.C. 2016) (citing Light

v. Wolf,

(D.C. Cir. 1987)). “[T]o do so, [s]he must demonstrate that the

procedure employed satisfied the requirements of the relevant portions of Rule 4 [of the Federal

Rules of Civil Procedure] and any other applicable provision of law.” Light,

(quoting Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1083 (4th

Ed. 2017). If the plaintiff fails to meet her burden, then the court necessarily “lacks authority to

exercise personal jurisdiction over the defendant.” Jouanny, 220 F. Supp. at 38 (citing Candido

3 v. District of Columbia,

(D.D.C. 2007)). Thus, improper service constitutes

a “fatal jurisdictional defect, and is grounds for dismissal.”

In this case, Ms. Raynor argues that service on Ms. Greene was properly effected under

Rule 4(e)(2)(B) of the Federal Rules of Civil Procedure. That Rule states that an individual may

be served in a judicial district of the United States by “leaving a copy of [the summons and

complaint] at the individual’s dwelling or usual place of abode with someone of suitable age and

discretion who resides there.” Fed. R. Civ. P. 4(e)(2)(B). Ms. Raynor contends that she made

“reasonable and diligent efforts” to locate Ms. Greene’s dwelling and points out that the Proof of

Service, which constitutes prima facie evidence of valid service, includes the process server’s

attestation that “Ms. Greene’s sister . . . accepted service on [Ms. Green’s] behalf. . . .” Pl.’s

Opp’n at 4. Ms. Greene, however, contends that service was not properly effected under the

Rule because she, in fact, did not “reside” at 4717 Alabama Avenue SE on July 13, 2015. See

Def.’s Mot. Dismiss at 3. Her declaration, however, is silent on how she defines “reside” or

whether that address was her “usual place of abode” at the time.

While it is true that a signed return of service constitutes “prima facie evidence of valid

service,” Gates v. Syrian Arab Republic,

, 85–86 (D.D.C. 2009), it is by no

means definitive evidence. Indeed, many courts have found that, under circumstances similar to

those presented here, plaintiffs had not met their burden to establish proper service when they

offered nothing more than conclusory statements in the face of competing evidence. See, e.g.,

Kammona v. Onteco, Corp.,

(11th Cir. 2014) (affirming dismissal where

plaintiff offered “no evidence to support his assertion that, at the time of service [the defendant]

resided at the address served.”); In re Barkats, No. 14-00053,

, *4 (D.D.C.

July 3, 2013) (finding that “the mere listing of an address on court papers, filed in a different

4 court, is not enough to carry the . . . burden of proof to demonstrate that the service address was

the debtor’s ‘dwelling or usual place of abode.’”); Winder v. Erste, No. 03-2623,

, *3 (D.D.C. March 31, 2005) (“Plaintiff offers no evidence that contradicts [defendant’s]

affidavit stating that he was not a resident at the place of service . . . . Plaintiff only makes

conclusory assertions that [defendant’s] evidence is insufficient to establish the absence of

residency . . . an argument based on the presumption that the defendant bears the burden of

proving the insufficiency of service of process.”). For example, in In re Barkats, creditors

attempted to serve a debtor with a summons and involuntary bankruptcy petition at an address

that the debtor had previously listed on court filings in D.C. Superior Court. See In re Barkats,

, at *1. The debtor contested the service, claiming that the address actually

belonged to a friend of his and that he had only listed it to provide a local address for mail from

the D.C. Court of Appeals. See

The bankruptcy court held that the creditors failed to

establish proper service because they did not provide sufficient evidence demonstrating that the

debtor ever “owned the property in question.” Id. at *4. Because the “only evidence the debtor

ever resided at the service address—temporarily or otherwise—[was] that the address was listed

as a mailing address on a paper filed by the debtor’s attorney in the D.C. Superior Court,” the

bankruptcy court could not find that the creditors had met their burden. Id. Despite the fact that

the creditors claimed to have acted in good faith, the Barkats Court noted that “no amount of

good faith on the petitioning creditors’ part [could] overcome th[e] fact” that service was

improper. Id.

In this case, the weight of the evidence does not sufficiently support Plaintiff’s claims

that Ms. Greene was properly served under Rule 4. Ms. Greene’s attests that she did not “reside”

at 4714 Alabama Avenue SE on July 13, 2015 when service was made at the address. Thus, Ms.

5 Raynor must bear the burden of proving that the address was Ms. Greene’s “dwelling or usual

place of abode.” See Light,

(D.C. Cir. 1987). But the only evidence that Ms.

Raynor can muster is the signed return of service and a private investigator’s letter. See Proof of

Service, ECF No. 51; Pl.’s Opp’n, Exhibit A, ECF No. 108-1. The proof of service, however,

simply asserts, without explanation, that the process server left the summons at Ms. Greene’s

“residence or usual place of abode” with Ms. Greene’s sister.1 Proof of Service, ECF No. 51.

Likewise, the investigator’s letter, which was not made under the pain of perjury, merely repeats

that conclusion, stating that the investigator “found [Ms. Greene] residing with her sister . . . at

4714 Alabama Avenue SE.” Pl.’s Opp’n, Exhibit A. But, like the return of service, it provides

no factual basis for the claim. See Pl.’s Opp’n, Exhibit A. Without more, these bare assertions

are simply not enough to establish that the service address was Ms. Greene’s dwelling or usual

place of abode. See Kammona,

; Barkats,

at *4; Winder

at *3. At best, the evidence is in equipoise, in which case the Court cannot say

that Ms. Raynor carried her burden. Thus, Ms. Raynor has failed to show that Ms. Greene was

properly served under Rule 4.

B. Waiver of Service

Ms. Raynor also argues, however, that, even if service was improper, Ms. Greene waived

her right to assert this objection. See Pl.’s Opp’n at 6. Rule 12(h)(1) of the Federal Rules of

Civil Procedure states that a defense for insufficient service of process shall be deemed waived if

it is not included in a motion under Rule 12, or, if no such motion has been made, if it is not

included in a responsive pleading or an amendment as of right to that pleading. See Fed. R. Civ.

1 Contrary to Ms. Raynor’s claim, nothing in the proof of service indicates that Ms. Greene’s sister accepted service on her “behalf.” Compare Pl.’s Opp’n at 4, with Proof of Service.

(h)(1). Here, Ms. Greene never filed an answer to the Complaint and had not otherwise

filed a responsive pleading or motion under Rule 12 until she filed the instant Motion. See

Def.’s Reply at 2, ECF No. 109. Consequently, Ms. Raynor cannot rely on the literal wording of

Rule 12(h) for her waiver argument.

Instead, Ms. Raynor argues that Ms. Greene waived service of process, not by filing a

responsive pleading or motion under Rule 12, but through the various other papers purportedly

filed on her behalf by defense counsel. See Pl.’s Opp’n at 6. It is true that “when a party seeks

affirmative relief from a court, it normally submits itself to the jurisdiction of the court with

respect to the adjudication of claims arising from the same subject matter.” Mann v. Castiel,

(D.C. Cir. 2012) (quoting PaineWebber Inc. v. Chase Manhattan Private Bank,

, 460–61 (5th Cir. 2001)). However, most of the documents identified by Ms.

Raynor are neither responsive pleadings nor indications that Ms. Greene sought to defend this

suit on the merits. By and large, the filings are defense counsels’ notices of appearance, status

reports and other notices, and a motion to stay the proceedings. See Pl.’s Opp’n at 6. But courts

in this Circuit have roundly rejected the notion that these types of filings might serve to waive

arguments for defective service of process. See Mann,

(holding that motion to

stay does not waive a defective service objection because it is “neither a responsive pleading . . .

nor a dispositive motion raising a defense listed in Rule 12(b)” and it does not “indicat[e] that a

defendant intends to defend a suit on the merits”) (internal quotation marks and citations

omitted); Doggett v. Gonzales, No. 06-0575,

, at *3 (D.D.C. Sept. 29, 2007)

(“[t]he fact that defendants are represented by counsel . . . amounts to neither a waiver of service

nor a concession that plaintiffs properly effected service of process.”); accord Hudson v.

Christian, No. 93-7240,

(D.C. Cir. June 15, 1994) (holding that “[a]ppellant’s

7 assertion that counsel’s entry of appearance in this court constitutes service on appellee is

without merit.”).

Two sets of filings identified by Ms. Raynor, however, deserve further discussion:

Defendants’ briefing on their Motion to Compel Discovery and Defendants’ Opposition to

Plaintiff’s Motion to Compel Discovery. ECF Nos. 85, 93. These filings were arguably

affirmative requests for relief from this Court by Ms. Greene and, thus, might be sufficient to

constitute waiver. See Paylan v. Bondi, No. 15-1366,

, at *2–*3 (M.D. Fl.

Nov. 9, 2015) (holding service of requests for production and filing of motion to compel

sufficient to waive argument regarding insufficient service of process); Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 1391 (3d ed.) (“[A] party can be held to

have waived a defense listed in Rule 12(h)(1) through conduct, such as extensive participation in

the discovery process or other aspects of the litigation of the case even if the literal requirements

of Rule 12(h)(1) have been met.”). Defense counsel explains, however, that these documents

were filed in the name of Ms. Greene through “inadverten[ce].” Def.’s Reply at 2. As defense

counsel tells it, they are counsel for all sixteen defendants in this case and they mistakenly

indicated that these documents were filed on Ms. Greene’s behalf when, apparently, they should

not have been. See Def.’s Reply at 2. While the Court must admonish defense counsel for their

carelessness in this regard, the Court will not construe counsels’ errors as a waiver by Ms.

Greene. Indeed, the “unequivocal requirement of service of process is designed to obviate [the]

concern” that an “unauthorized representative might bind or prejudice a defendant without his or

her permission or knowledge.” Yaxin Jing v. Angel Tips, Inc., No. 11-5073,

,

*4 (E.D.N.Y. March 11, 2013). The Plaintiff has not claimed that Ms. Greene has herself been

personally engaged in this litigation in any meaningful capacity and, therefore, the Court will

8 take defense counsel at their word that their prior representations on Ms. Greene’s behalf were,

at the time, unauthorized. The Court will therefore not hold Ms. Greene accountable for

counsel’s mistakes.2

C. Whether the Court Should Allow Further Service of Ms. Greene

Finally, Plaintiff argues that even if service was insufficient, the Court may “direct that

service be effected within a specific amount of time.” Pl.’s Opp’n at 7. Indeed, under Rule

4(m), when service is not effected within 120 days after a complaint is filed, a district court may

“order that service be made within a specified time.” Fed. R. Civ. P. 4(m). If the plaintiff shows

good cause for the failure in service, the court “must extend the time for service for an

appropriate period.”

“Good cause” arises when a “plaintiff has acted diligently in trying to

effect service or there are understandable mitigating circumstances. . . .” Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 1137 (4th ed. 2017).

Based on the record, the Court is convinced that good cause exists to allow Plaintiff

additional time to effect service of process on Ms. Greene. The D.C. Circuit’s opinion in Moore

v. Agency for International Development,

(D.C. Cir. 1993), is instructive here. In

that case, shortly after filing his complaint, the plaintiff twice attempted, but ultimately failed, to

serve two individual defendants employed by the United States. See

at 876–77.

2 The Court would also like to point out that, although Plaintiff complains that this motion is untimely as it comes two years after service was supposedly effected, she too bears some of the blame for this delay. As noted above, the docket reflects that Ms. Greene had never filed an answer or responsive motion to Plaintiff’s Complaint. Indeed, the first filing that was ever even supposedly made in the name of Ms. Greene was a notice filed in January 2017— nearly eighteen months after Ms. Greene had supposedly been served and well after the time that Plaintiff could have expected a response to the Complaint. Nevertheless, Plaintiff never sought to bring this issue to the fore, as they could have, through a motion for default judgment. Based on the record, the Court does not see evidence of bad faith on the part of Ms. Greene. Rather, it simply appears that no one—not defense counsel and not Plaintiff—paid any attention to her status in this case.

9 Nevertheless, the Assistant U.S. Attorney made an appearance on behalf of the defendants and

made three requests for extensions of time. See

. Based on these repeated appearances,

the D.C. Circuit had “no doubt [that plaintiff] believed the defendants had been properly served.”

Then, nearly three months after the lawsuit began, the defendants moved to dismiss the suit

based, in part, on the ineffective service of process. See

at 876–77. Based on those facts, the

D.C. Circuit held that the “two attempts to serve the defendants who had notice of the suit and

were represented by counsel, coupled with the government’s long delay in responding to the

complaint, constitute[d] good cause to satisfy Rule 4(j),” the predecessor to modern Rule 4(m).

. Thus, the court remanded the case to allow the plaintiff “the opportunity to perfect

service.”

As in Moore, Plaintiff was diligent in her efforts to effect service on Ms. Greene, and,

even though that service was ultimately ineffective, government counsel appeared on Ms.

Greene’s behalf, even if erroneously, and proceeded to file papers in her name over a period of

more than six months before filing the instant motion to dismiss. While the Court is unwilling to

find that these events are sufficient to constitute waiver of service, they at least constitute good

cause to allow Plaintiff another opportunity to properly serve Ms. Greene. See

As other

courts in this Circuit have observed, “[t]he rules governing service of process are not designed to

create an obstacle course for plaintiffs to navigate, or a cat-and-mouse game for defendants who

are otherwise subject to the court’s jurisdiction.” Ali v. Mid-Atl. Settlement Servs., Inc.,

, 35–36 (D.D.C. 2006) (quoting TRW, Inc., v. Derbyshire,

(D. Colo.

1994)). Thus, under the circumstances presented here, basic notions of fairness require that

Plaintiff be given more time. Accordingly, the Court will deny Ms. Greene’s Motion to Dismiss

without prejudice, subject to renewal, allowing Plaintiff 30 additional days to serve Ms. Greene.

10 Defendant must provide Plaintiff with any information in its possession that may assist in that

effort.

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss is DENIED without prejudice

and subject to renewal. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: November 3, 2017 RUDOLPH CONTRERAS United States District Judge

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