Howard v. Shelton

277 F.R.D. 168, 2011 U.S. Dist. LEXIS 97539, 2011 WL 3846703
CourtDistrict Court, S.D. Mississippi
DecidedAugust 30, 2011
DocketNo. 3:10-CV-00494-CWR-LRA
StatusPublished
Cited by3 cases

This text of 277 F.R.D. 168 (Howard v. Shelton) is published on Counsel Stack Legal Research, covering District Court, S.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Howard v. Shelton, 277 F.R.D. 168, 2011 U.S. Dist. LEXIS 97539, 2011 WL 3846703 (S.D. Miss. 2011).

Opinion

ORDER

CARLTON W. REEVES, District Judge.

The above-styled matter is before the Court on the defendants’ Motion to Dismiss.1 The Court has duly considered the request but has concluded that good cause warrants the motion’s denial.

On September 7, 2010, Makeda Howard (hereinafter “Howard”), acting pro se, filed suit2 in district court against Shondra Shelton (hereinafter “Shelton”) and John Doe for mental anguish connected to a fire at (and her ensuing eviction from) an apartment complex earlier that year. Magistrate Judge Linda R. Anderson granted Howard leave to proceed informa pauperis on September 16, 2010, and ordered the clerk to receive summons forms from Howard, to issue process against the defendants, and to deliver the process to the United States Marshals Service, who in turn was ordered to serve process on the defendants.3

On September 27, 2010, the clerk of the court filed a letter from Howard providing Shelton’s address and, apparently, averring that the John Doe defendant was “Redel-woods [sic ] Apt.”4

The clerk of the court issued summonses in accordance with Judge Anderson’s Order on February 1, 2011. The Marshals Service attempted to serve Shelton on February 7, 2011, but did not find her at her address. However, the deputy U.S. Marshal noted on the receipt that he “[s]poke with Ms. Shelton on phone; stated it was fine to leave with boyfriend (Javiam Morgan)[.]” The deputy marshal delivered the summons to Javiam Morgan (hereinafter “Morgan”).5 But according to the defendants, “on information and belief,” Morgan soon thereafter “brought the summons to the apartment manager and told her that Shelton did not live in his apartment.”6

On May 16, 2011, the Marshals Service likewise attempted to serve Rebelwoods Apartments. According to the deputy marshal’s notes, the site manager, Chrystal Ray-born (hereinafter “Rayborn”), “stated their Dist. Mgr. does not come to this location on a regular basis. In my presence [Rayborn] called the Vice Pres., Lora Black @ 601 936-XXXX who’s [sic ] office is at 3825 Old Brandon Rd, Pearl MS and advised of my presence and notice to serve said papers. Ms. Rayborn stated that Ms. Black advised her to accept the process and scan to her, which she did while I was still in her office.”7

Without filing an answer, Shelton and Rebelwoods Apartments jointly moved for dismissal on July 19, 2011. Specifically, the defendants argued that service upon Rebelwoods Apartments failed because its summons “does not properly identify the defendant” and because Rayborn “is not authorized to accept service for any individual or entity named ‘John Doe.’ ”8 Moreover, according to the defendants, service also was not perfected upon Shelton “as the U.S. Marshall [sic ] simply left the summons and complaint with Shelton’s boyfriend in his apartment.”

ANALYSIS

Service of process upon a defendant in a federal lawsuit is not so simple as delivering [170]*170a Christmas card. Federal law sets forth requirements for plaintiffs that are meticulous — and sometimes befuddling — even for a seasoned attorney.

Among other things, Rule 4 of the Federal Rules of Civil Procedure requires that “[a] summons must ... name ... the parties[.]”9 Furthermore, Rule 4 lists specific ways in which service is to be performed, depending on the nature of the defendant. For example, “an individual ... may be served ... by ... delivering a copy of the summons and complaint to the individual personally ... [or] leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there[.]”10 And in the case of a suit against a corporation, the plaintiff may comply with Rule 4’s service requirements “by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to received service of process....”11

The Court has little difficulty in determining that service upon Shelton satisfied Rule 4. The defendants argue that the marshal “simply left the summons and complaint with Shelton’s boyfriend in his apartment,” but even if true, that contention does not suggest that service was insufficient. The Fifth Circuit has held that Rule 4’s “provision concerning usual place of abode should be liberally construed to effectuate service if actual notice has been received by the defendant” 12 and that this question is to be “considered] ... from a practical standpoint.”13 Notwithstanding Shelton’s apparent disagreement with Morgan regarding where exactly she abided, even the defendants do not contend that the attempt at service deprived Shelton of notice. Obviously, mere notice will not suffice to save an otherwise flawed service,14 but when notice exists, the rest of Rule 4(e)(2)(B)’s terms should be broadly construed,15 and this Court is satisfied that the apartment of Shelton’s boyfriend was, under these circumstances, a usual place of abode — particularly in light of the fact that Shelton herself told the marshal to complete service by leaving the summons with Morgan. To be sure, she could excuse the marshal service from the exactness of service by requesting that he leave the process with her boyfriend or any one else.

With regard to Rebelwoods Apartments, the defendants argue that dismissal is appropriate both because of the form of the process and the method by which it was served. Specifically, the defendants argue that Rebelwoods Apartments’ summons “does not properly identify the defendant” and because Rayborn “is not authorized to accept service for any individual or entity named ‘John Doe.’ ”16

The latter argument is self-obvious; no one is authorized to accept service for John Doe because, for the purposes of civil procedure, there is no such person. This contention, however, is no basis for dismissing the Howard’s complaint.17

But the former suggestion is correct. The summons at issue plainly is directed to “John Doe” and not to Rebelwoods [171]*171Apartments.18 “Under ... the Federal Rules of Civil Procedure, a summons must include the names of the parties, among other things, and must be directed to the defendant being sued.”19 Still, as the Court already has indicated herein, a “plaintifPs pro se status ... entitles [her] to a certain degree of leniency so as to ensure that [her] case is justly resolved on its merits rather than on the basis of procedural technicalities to the extent possible.”20 Rebelwoods Apartments’ participation in this litigation demonstrates that notice has been established, notwithstanding the technical imperfections associated with service. And while notice alone does not satisfy Rule 4,21

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Bluebook (online)
277 F.R.D. 168, 2011 U.S. Dist. LEXIS 97539, 2011 WL 3846703, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-shelton-mssd-2011.