Lowe v. Hart

157 F.R.D. 550, 31 Fed. R. Serv. 3d 142, 1994 U.S. Dist. LEXIS 17513, 1994 WL 549744
CourtDistrict Court, M.D. Florida
DecidedSeptember 21, 1994
DocketNo. 93-1421-Civ-J-20
StatusPublished
Cited by5 cases

This text of 157 F.R.D. 550 (Lowe v. Hart) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lowe v. Hart, 157 F.R.D. 550, 31 Fed. R. Serv. 3d 142, 1994 U.S. Dist. LEXIS 17513, 1994 WL 549744 (M.D. Fla. 1994).

Opinion

ORDER

SCHLESINGER, District Judge.

In the Court’s May 25, 1994, Order (Doc. No. 45), the Court advised Plaintiff to respond to the Motion to Dismiss Defendants for Failure to Serve (Doe. No. 34). The Court warned Plaintiff that after June 7, 1994, the Court would take the Motion to Dismiss Defendants for Failure to Serve under advisement whether or not a response is filed, and that the disposition of this Motion may result in the dismissal of the case without any further proceeding. To date, Plaintiff has failed to respond to the Motion to Dismiss Defendants for Failure to Serve.

The Court finds that Defendants Hart, Gear, Heitger, and Bell have not been properly served in this action.

Returns of Service (Doc. No. 7) upon Defendants Hart, Gear, Heitger and Bell were filed January 4,1994. The Return of Service for Dale F. Hart states:

Defendant’s home address and attorneys are unknown to me, therefore I did serve upon a competent person at Defendant’s known place of work, the IRS office in the Federal Building Jacksonville a 16 page complaint and summons for case number 93-1421-Civ-J-20. Service was done upon Darlene J. Hartley (employee IRS) for Defendant Dale F. Hart.

The Return of Service for Charles F. Gear states:

Defendant’s home address and attorneys are unknown to me, therefore I did serve upon a competent person at Defendant’s known place of work, the IRS office First Union Building Daytona, a 16 page complaint and summons for case number 93-1421-Civ-J-20. Service was done upon V. Tedford and Ms. Bland both IRS employees for Defendant Charles F. Gear.

The Return of Service for Mary Heitger states:

Defendant’s home address and attorneys are unknown to me, therefore I did serve upon a competent person at Defendant’s known place of work (the IRS office First Union Building Daytona) a 16 page complaint and summons for case number 93-1421-Civ-J-20. Service was made upon Ms. V. Tedford and Ms. Bland—both IRS employees, for Defendant Mary Heitger.

The Return of Service for Defendant Bell states:

Defendant’s home address and attorneys are unknown to me, therefore I did serve upon a competent person at Defendant’s known place of work (the IRS office First Union Building Daytona) a 16 page complaint and summons for case number 93-1421-Civ-J-20. Service was made upon Ms. V. Tedford and Ms. Bland, both IRS employees, for Defendant Bell. .

Each Defendant has, by sworn declaration, stated that they have not been served with process in this case. This action was commenced on October 21, 1993. Thus, Plaintiff had 120 days from this date to properly serve Defendants.

On April 22, 1993, the Supreme Court entered an Order stating that:

the foregoing amendments to the Federal Rules of Civil Procedure shall take effect on December 1, 1993, and shall govern all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings in civil cases then pending.

Thus, the new rules apply in pending proceedings only if it is just and practicable to apply them. The Court finds it “just and practicable” to apply the new Federal Rules of Civil Procedure in this case since Defendants were purportedly served after December 1, 1993, the effective date of the amendments to the Federal Rules of Civil Procedure. However, the Court would reach the same result if the old rules were used.

First, the Court will address Defendants’ contention that, pursuant to Rules 4(i)(l) and (2) of the Federal Rules of Civil Procedure, since this action is against federal officers, albeit in their individual capacity, the action is based upon their conduct as federal officers and therefore the United States must also be served with process. The Eleventh Circuit has not yet addressed [552]*552this issue. Nevertheless, the Court finds that Rule 4(i) does not apply when an officer is being sued in his or her individual capacity.

In the instant action, Plaintiff is suing Hart, Gear, Heitger and Bell in then’ individual capacities.1 A plaintiff suing a federal employee in his or her individual capacity, rather than the governmental agency or entity employing the individual, is required to make personal service of process. See Robinson v. Turner, 15 F.3d 82, 84 (7th Cir. 1994). Thus, Plaintiff must serve these Defendants pursuant to Rule 4(e) of the Federal Rules of Civil Procedure. In individual capacity lawsuits, “the usual procedure for service on individuals set out elsewhere in Rule 4 apply, and [Rule 4(i) ] need [not] be consulted.” Robinson, 15 F.3d at 85 (quoting Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1107 at 163 (1987); see Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436 (10th Cir.1994); Johnston v. Horne, 875 F.2d 1415, 1424 (9th Cir.1989); Micklus v. Carlson, 632 F.2d 227 (3d Cir.1980); James W. Moore et al., Moore’s Federal Practice § 4.29 at 4-240-41 (1986). Thus, the issue of whether the United States was served is irrelevant to the analysis of whether Bell, Gear, Hart and Heitger in their individual capacities were properly served.

Pursuant to Rule 4(e) of the Federal Rules of Civil Procedure, service needed to have been made upon Defendants Bell, Gear, Hart and Heitger, in their individual capacities, either “pursuant to the law of the state in which the district court is located, or in which service is effected,” or “by delivering a copy of the summons and complaint to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.” Fed.R.Civ.P. 4(e)(1) and (2).

Service was attempted on Defendants Bell, Gear, Hart and Heitger by leaving the summons and complaint with someone at their place of business. Defendants Bell, Gear, Hart and Heitger have each stated in their sworn declarations that they have not authorized any individual to accept service of process on their behalf. Thus, Defendants were not served pursuant to Rule 4(e)(2).

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Bluebook (online)
157 F.R.D. 550, 31 Fed. R. Serv. 3d 142, 1994 U.S. Dist. LEXIS 17513, 1994 WL 549744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowe-v-hart-flmd-1994.