Raynor v. Dist. of Columbia
Raynor v. Dist. of Columbia
Opinion of the Court
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 *69compel 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 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. ,
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 ,
*70Indeed, 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. ,
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. Raynor must bear the burden of proving that the address was Ms. Greene's "dwelling or usual place of abode." See Light ,
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. P. 12(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 ,
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.
*72See Paylan v. Bondi , No. 15-1366,
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."
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 ,
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
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.
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.
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.
Reference
- Full Case Name
- Veronica RAYNOR, Individually and as the Personal Representative of the Estate of Reuel Griffin v. DISTRICT OF COLUMBIA
- Cited By
- 8 cases
- Status
- Published