Bozorgmehr Pouyeh v. Public Health Trust of Jackson Health System

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 21, 2017
• Docket: 17-12749
• Status: Unpublished

Opinion

Case: 17-12749 Date Filed: 11/21/2017 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-12749 Non-Argument Calendar ________________________

D.C. Docket No. 1:16-cv-23582-JEM

BOZORGMEHR POUYEH,

Plaintiff-Appellant,

versus

PUBLIC HEALTH TRUST OF JACKSON HEALTH SYSTEM, a.k.a. the "Trust", CARLOS A. MIGOYA, Chief Executive Officer of the Trust, DR. STEVEN J. GEDDE, Program Director of Opthamology Residency Program, DR. STEFANIE R. BROWN, Program Director of Preliminary & Internal Medicine f.k.a. Dr. Doe, DR. J. DONALD TEMPLE, Program Director of Harrington Program, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________ (November 21, 2017) Case: 17-12749 Date Filed: 11/21/2017 Page: 2 of 10

Before TJOFLAT, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM:

Bozorgmehr Pouyeh, proceeding pro se, appeals the district court’s orders

dismissing his complaint based on insufficient service of process and denying his

post-judgment motion for reconsideration under Rule 59(e), Fed. R. Civ. P.

Pouyeh maintains on appeal that the defendants waived their right to challenge the

sufficiency of service of process. The district court rejected that argument, and so

do we. Therefore, we affirm.

I.

In August 2016, Pouyeh sued the Public Health Trust of Jackson Health

System (the “Trust”), its Chief Executive Officer, and several of its employees

after he applied for but did not receive a position in the Jackson Health System’s

internal medicine and ophthalmology residency programs or its preliminary

medicine internship program. Pouyeh alleged that he was denied these positions

because he was an Iranian national who earned his medical degree in Iran and that

the defendants had violated his federal statutory and constitutional rights.

On August 23, Pouyeh filed proofs of service indicating that summonses for

all defendants were served on “County Commission Clerk Terry Murphy” that

same day. Three weeks later, Pouyeh moved for clerk’s entry of default, and the

clerk entered default as to each of the defendants on September 14.

2 Case: 17-12749 Date Filed: 11/21/2017 Page: 3 of 10

On September 29, one day after Pouyeh moved for default judgment, an

attorney entered a notice of appearance on behalf of all defendants. One week

later, on October 6, the defendants filed a motion to dismiss the complaint “and/or

quash service and set aside clerk’s default, pursuant to Federal Rule of Civil

Procedure 12(b)(5).” In the motion, the defendants argued that Pouyeh’s service

on the county commissioner was insufficient for the individual defendants or the

Public Health Trust of Miami-Dade County, which operated the Jackson Health

System. 1 On the same day that they filed the motion to dismiss, the defendants

also filed a response to Pouyeh’s emergency motion for a permanent or

preliminary injunction. In a footnote, the defendants stated that they had

responded to Pouyeh’s motion only because the court had ordered them to, and

they reiterated their belief that they had not been properly served.

Thereafter, Pouyeh argued in a series of filings that the defendants had

waived their defense of insufficient service of process by raising the issue after the

clerk entered default and after their attorney had entered a notice of appearance.

On that basis, he moved to strike the defendants’ motion to dismiss. He also

submitted a declaration describing in detail his efforts to comply with the rules of

service in Rule 4, Fed. R. Civ. P.

1 Florida Statute § 154.07 authorizes each county in the state to create a public-health trust to operate health care facilities in the county. Pursuant to § 154.07, Miami-Dade County created a public health trust under which Jackson Memorial Hospital operates. See Miami-Dade County Code § 25A-1. 3 Case: 17-12749 Date Filed: 11/21/2017 Page: 4 of 10

In April 2017, the magistrate judge issued a report and recommendation

(“R&R”) recommending that the defendants’ motion to dismiss be granted. The

magistrate judge found that Pouyeh’s service on the county-commission clerk was

insufficient under Florida law for either the individual defendants or the Trust.

Pouyeh filed objections to the R&R, asserting that the defendants had waived their

right to challenge the sufficiency of service of process and that he had actually

perfected service in compliance with Rule 4.

Over Pouyeh’s objections, the district court adopted the R&R and granted

the defendants’ motion. Without directly addressing Pouyeh’s contention that

service was proper, the court found that the defendants had not forfeited their right

to object to insufficient service of process by filing a notice of appearance. The

court vacated the clerk’s default, dismissed the complaint without prejudice, and

administratively closed the case, but it allowed Pouyeh to file an amended

complaint within 30 days and then perfect service in accordance with Florida law.

Pouyeh did not file an amended complaint. Instead, he filed a motion to

alter or amend the judgment under Rule 59(e), Fed. R. Civ. P., which the court

denied. Then he filed this appeal.

II.

“We review the district court’s grant of a motion to dismiss for insufficient

service of process under Fed. R. Civ. P. 12(b)(5) by applying a de novo standard to

4 Case: 17-12749 Date Filed: 11/21/2017 Page: 5 of 10

the law and a clear error standard to any findings of fact.” Prewitt Enters., Inc. v.

Org. of Petroleum Exporting Countries, 353 F.3d 916, 920 (11th Cir. 2003).

Whether the defendants waived the defense of insufficient service of process under

Rule 12, Fed. R. Civ. P., is an issue of law we review de novo. Silvious v.

Pharaon, 54 F.3d 697, 700 (11th Cir. 1995) (“We review the district court’s

interpretation of the Federal Rules of Civil Procedure de novo.”). We review the

denial of a Rule 59(e), Fed. R. Civ. P., motion for an abuse of discretion. Drago v.

Jenne, 453 F.3d 1301, 1305 (11th Cir. 2006).

We liberally construe the filings of pro se litigants. Albra v. Advan, Inc.,

490 F.3d 826, 829 (11th Cir. 2007). Nevertheless, we still require them to comply

with procedural rules, like the rules of service in Rule 4, Fed. R. Civ. P. Id. In

addition, issues not briefed on appeal, even by pro se litigants, are deemed

abandoned and will not be considered. Timson v. Sampson, 518 F.3d 870, 874

(11th Cir. 2008).

III.

Initially, we note that Pouyeh has abandoned any challenge to the district

court’s conclusion that he did not properly serve the defendants. The only issue

Pouyeh raises in his briefing to this Court is whether the defendants waived their

right to contest the sufficiency of service of process. He also appears to agree with

the defendants’ assertion that, “[o]n appeal, he does not allege that . . . he

5 Case: 17-12749 Date Filed: 11/21/2017 Page: 6 of 10

effectuated proper service on any of the Defendants/Appellees.” Although he

suggests that the defendants had actual notice of the lawsuit through his attempts at

service, “[a] defendant’s actual notice is not sufficient to cure defectively executed

service.” Albra, 490 F.3d at 828. Because Pouyeh has not briefed the issue of

whether service was properly effected, we conclude that it has been abandoned.2

See Timson, 518 F.3d at 874.

Turning to the issue of waiver, Pouyeh argues that the defendants waived

their right to contest the sufficiency of service of process when their attorney filed

a notice of appearance on their behalf after the clerk had entered default. Pouyeh

also contends that the defendants’ other actions before the district court constituted

a forfeiture of their objection. We disagree.

“Service of process is a jurisdictional requirement: a court lacks jurisdiction

over the person of a defendant when that defendant has not been served.” Pardazi

v. Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990). Nevertheless,

objections to service of process “can be waived by the party over whom

jurisdiction is sought.” Id. Such objections are deemed waived “if not raised

2 In any case, it appears that Pouyeh did not properly serve the defendants under federal or Florida law. With regard to the individual defendants, Pouyeh did not personally deliver the summonses, or leave the summonses at the individuals’ usual places of abode with someone of suitable age and discretion. See Fed. R. Civ. P. 4(e)(1)–(2); Fla. Stat. § 48.031(1)(a). Pouyeh also failed to properly serve the Trust, a public body corporate, because he did not leave the summons with the CEO, president, vice president, or any member of the Trust’s governing board. See Fed. R. Civ. P. 4(j)(2)(A); Fla. Stat. Ann. § 48.111(1)(a)–(c). 6 Case: 17-12749 Date Filed: 11/21/2017 Page: 7 of 10

under Federal Rule of Civil Procedure 12.” Hemispherx Biopharma, Inc. v.

Johannesburg Consol. Invs., 553 F.3d 1351, 1360 (11th Cir. 2008).

Under Rule 12, a party must raise any objections to the sufficiency of

service of process in his or her first response to the plaintiff’s complaint. Id. In

other words, “the defendant must include the defense in either its pre-answer

motion to dismiss, or if no pre-answer motion is filed, then the defense must be

included in the defendant’s answer.” Id. A party who fails to do so is deemed to

have waived his or her objection under Rule 12(h). Id.; Pardazi, 896 F.2d at 1317;

Fed. R. Civ. P. 12(h)(1).

Here, the defendants objected to the sufficiency of service of process in their

pre-answer motion to dismiss, which was their first response to Pouyeh’s

complaint. Accordingly, the defendants did not waive their objection to the

sufficiency of process under Rule 12(h).

Pouyeh’s attempts to construct a waiver from the defendants’ actions are

unavailing. First, the defendants’ attorney’s entry of a notice of appearance on

their behalf did not constitute a waiver as the equivalent of a “general appearance.”

See In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1299 (11th Cir. 2003) (“[A]

party’s right to dispute personal jurisdiction on insufficient service of process

grounds is waived if the party fails to assert that objection in his first Rule 12

motion, other initial pleading[,] or general appearance.”). To begin with, the

7 Case: 17-12749 Date Filed: 11/21/2017 Page: 8 of 10

Federal Rules of Civil Procedure abolished the technical distinction between

general and special appearances. See Hous. Auth. of City of Atlanta v. Millwood,

472 F.2d 269, 272 (5th Cir. 1973)3; Orange Theatre Corp. v. Rayherstz Amusement

Corp., 139 F.2d 871, 874 (3d Cir. 1944) (“Rule 12 . . . abolished for the federal

courts the age-old distinction between general and special appearances.”). The

objecting party need not appear specially to contest to the sufficiency of process.

Millwood, 472 F.2d at 272. Rather, the party simply must comply with Rule 12,

which the defendants did here. See id.

And nothing in Rule 12 contemplates that an attorney’s entry of a notice of

appearance on a defendant’s behalf amounts to a waiver of a Rule 12 defense. Nor

would it make much sense if it did, because the notice is not a response to the

complaint. Pouyeh cites a case from the Sixth Circuit, Gerber v. Riordan, 649

F.3d 514 (6th Cir. 2011), which appears to hold that a notice of appearance is

sufficient to constitute a waiver of the defense of insufficient service of process, id.

at 520. But that decision, of course, is not controlling. And a later decision of the

Sixth Circuit has cast doubt on that holding. King v. Taylor, 694 F.3d 650, 661 n.7

(6th Cir. 2012) (holding that a “written appearance filed by [the defendant’s]

counsel one month before [the defendant] moved for dismissal on the basis of lack

of service does not constitute forfeiture,” and stating that Gerber was inconsistent

3 This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). 8 Case: 17-12749 Date Filed: 11/21/2017 Page: 9 of 10

with earlier prior precedent). In any event, because waiver of the defense of

insufficient service of process is governed by Rule 12, and Rule 12 does not

provide for waiver by filing a notice of appearance, the defendants’ attorney’s

entry of a notice of appearance did not constitute a waiver.

Second, to the extent waiver could be shown even where, as here, the

defendants complied with Rule 12, the defendants’ conduct in this case does not

show that they “invoke[d] the judgment of the court on any question other than

jurisdiction.” Maiz v. Virani, 311 F.3d 334, 340 (5th Cir. 2002) (“A party makes a

general appearance whenever it invokes the judgment of the court on any question

other than jurisdiction.”). As we have established, the defendants properly raised

their objection to the sufficiency of service of process in their first response to

Pouyeh’s complaint. See Hemispherx Biopharma, Inc., 553 F.3d at 1360. The fact

that they also complied with court orders to respond to other matters, such as

Pouyeh’s motion for an injunction, does not show that they had abandoned that

objection or invoked the court’s jurisdiction on a matter other than jurisdiction.

Indeed, their response to Pouyeh’s motion for an injunction makes clear that they

believed they had not been properly served.

Finally, the defendants’ slight delay in responding to the complaint does not

constitute a waiver of the defense of insufficient service of process. We have

recognized that a defendant may risk waiving such a defense if “he or she waits

9 Case: 17-12749 Date Filed: 11/21/2017 Page: 10 of 10

until final default judgment has been entered” to raise the issue where the

defendant has not been prejudiced by a technical defect in the summons.

Sanderford v. Prudential Ins. Co. of Am., 902 F.2d 897, 900 (11th Cir. 1990). But

here, the defendants raised the issue before final default judgment was entered.

And it was well within the district court’s discretion to set aside the clerk’s entry of

default after finding that service was insufficient. See Robinson v. United States,

734 F.2d 735, 739 (11th Cir. 1984) (“Action on a motion to set aside a default is

within the discretion of the district court[.]”); cf. In re Worldwide Web Sys., 328

F.3d at 1299 (“Generally, where service of process is insufficient, the court has no

power to render judgment and the judgment is void.”).

In sum, the defendants did not waive their objection to insufficient service of

process because they raised the defense in accordance with Rule 12 and did not

otherwise invoke the court’s jurisdiction on a matter other than jurisdiction.

Because Pouyeh does not assert that service was proper, the district court properly

granted the defendants’ motion to dismiss and quash service. See Prewitt Enters.,

Inc, 353 F.3d at 920. We therefore affirm the court’s judgment. The arguments

we have rejected above also form the basis of Pouyeh’s claim that the district court

abused its discretion in denying his post-judgment motion under 59(e), so we

affirm the denial of that motion also.

AFFIRMED.