Cherry v. Spence

249 F.R.D. 226, 70 Fed. R. Serv. 3d 319, 2008 U.S. Dist. LEXIS 26837, 2008 WL 896202
District Court, E.D. North Carolina·Decided April 2, 2008·No. No. 5:07-CV-470-D·Published·Cited by 15 cases

Opinion

ORDER

JAMES C. DEVER III, District Judge.

Defendants Officer Shawn Spence (“Spence”), Officer Erin Ellerman (“Ellerman”),1 and the City of Henderson, North Carolina (“City”)2 (collectively, “defendants”) move to dismiss plaintiff Joseph M. Cherry, II’s (“Cherry” or “plaintiff’) complaint on multiple grounds under Federal Rule of Civil Procedure 12(b). Because plaintiff did not properly serve process on any of the defendants he purported to sue, defendants’ motion to dismiss is granted.

I.

On November 26, 2007, plaintiff filed a pro se complaint. Plaintiff purported to sue Offi[228] cer Spence in his official capacity, Officer “Erin Elemer” in her official capacity, and the Henderson Police Department. See Compl. 1 & 11 III. Plaintiffs complaint arises from a traffic stop conducted in October 2007, near Henderson, North Carolina, in which the defendant officers stopped plaintiff for speeding and then searched plaintiffs car after their drug-sniffing dog alerted to the scent of drugs. See Compl. IT IV. Plaintiff argues that the officers did not have probable cause to search his car, and that the search violated his Fourth Amendment rights. Id. 11V. Plaintiff requests damages of $3,500,000.00, additional damages for repairs to the car resulting from the search, and costs and fees. Id. 11VI.

Plaintiff attempted to serve the complaint by faxing the first page (and only the first page) of the complaint to the Henderson Police Department. Keith L. Sidwell Aff. 113. The Henderson Police Department is a division of the City, not an independent legal entity. Id. U1. The Chief of Police for the City of Henderson forwarded the page to the Henderson city attorney; however, neither the Henderson Police Department nor the City have a practice or procedure of accepting service by fax. Id. 114. Further, although plaintiff attempted to sue Officer “Erin Elemer,” the officer who conducted plaintiffs traffic stop was Officer Erin Ellerman. See Erin Ellerman Aff. HH 23. None of the defendants have been properly served with a summons and a copy of the complaint. See id. 114; Shawn Spence Aff. H 3; Sidwell Aff. 114.

On February 6, 2008, defendants moved to dismiss this action for lack of personal jurisdiction, insufficient process, insufficient service of process, and failure to state a claim upon which relief may be granted. See Defs.’ Mot. to Dismiss 1 (citing Fed.R.Civ.P. 12(b)(2), (4)(6)). Plaintiff did not respond to defendants’ motion, and the court’s attempts to contact plaintiff at his record address have been returned as unclaimed or rejected as undeliverable. See Cherry v. Spence, No. 5:07-CV-470-D, [D.E. 12] (E.D.N.C. Jan. 18, 2008) (copy of envelope returned as unclaimed); id., [D.E. 17-2] (E.D.N.C. Feb. 6, 2008) (copy of envelope rejected as undeliverable).

II.

Under Federal Rule of Civil Procedure 4(c)(1), “[a] summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.” Further, “[i]f a defendant is not served within 120 days after the complaint is filed, the court ... must dismiss the action without prejudice against that defendant or order that service be made within a specified time” unless the plaintiff shows good cause for the failure to make service. Fed.R.Civ.P. 4(m). “Absent waiver or consent, a failure to obtain proper service on the defendant deprives the court of personal jurisdiction over the defendant.” Koehler v. Dodwell, 152 F.3d 304, 306 (4th Cir.1998).

Defendants move to dismiss pursuant to, inter alia, Federal Rules of Civil Procedure 12(b)(2), 12(b)(4), and 12(b)(5). Defs.’ Mot. to Dismiss 1. Rule 12(b)(2) provides for dismissal due to a lack of personal jurisdiction over the defendant(s). Rule 12(b)(4) provides for dismissal for insufficient process. Rule 12(b)(5) provides for dismissal for insufficient service of process. Here, plaintiff attempted to serve all the defendants collectively by faxing only the first page of his complaint to the Henderson Police Department, without any summons. This attempt at service is insufficient under the Federal Rules for numerous reasons.

First, plaintiff did not provide defendants the proper documents to complete service of process. Under Federal Rule of Civil Procedure 4(c)(1), “[a] summons must be served with a copy of the complaint.” Each defendant is entitled to a summons or a copy thereof, Fed.R.Civ.P. 4(b), and service of a complaint without a summons is improper. See, e.g., 4A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1093 (3d ed. 2002 & Supp.2007) (collecting cases). Here, plaintiff attempted to complete service by faxing only the first page of his [229] complaint, without a summons, and he thus failed to complete service.

Further, even if plaintiff had attached a summons, he did not provide the defendants a copy of the complaint. Service of a partial complaint is insufficient. See, e.g., Patterson v. Brown, No. 3:06cv476, 2008 WL 219965, at *9-11 (W.D.N.C. Jan. 24, 2008) (unpublished) (service insufficient where 16 out of 39 pages were missing from complaint). This rule is important, because a defendant is required to admit or deny each allegation contained in the complaint, and where a defendant fails to clearly deny an allegation, he is deemed to have admitted it. See Fed.R.Civ.P. 8(b). The defendants cannot admit or deny each allegation in the complaint when they only possess one page of it.

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Cherry v. Spence, 249 F.R.D. 226, 70 Fed. R. Serv. 3d 319, 2008 U.S. Dist. LEXIS 26837, 2008 WL 896202 (E.D.N.C. 2008).

249 F.R.D. 226 (Cherry v. Spence) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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