King v. Taylor

• Decision Date: 19 October 2012
• Docket Number: No. 11–5917.,11–5917.
• Citation: 694 F.3d 650
• Parties: Allen KING and Bruce King, Administrators of the Estate of Roger King, Plaintiffs–Appellants, v. Eric TAYLOR, in his individual capacity as a Kentucky State Trooper, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

694 F.3d 650

Allen KING and Bruce King, Administrators of the Estate of Roger King, Plaintiffs–Appellants,

v.Eric TAYLOR, in his individual capacity as a Kentucky State Trooper, Defendant–Appellee.

No. 11–5917.

United States Court of Appeals, Sixth Circuit.

Argued: July 17, 2012.

Decided and Filed: Sept. 12, 2012.

Rehearing and Rehearing En Banc Denied Oct. 19, 2012.

ARGUED:Hans G. Poppe, The Poppe Law Firm, Louisville, Kentucky, for Appellants. Morgain M. Sprague, Kentucky State Police, Frankfort, Kentucky, for Appellee. ON BRIEF:Garry R. Adams, Clay Frederick Adams PLC, Louisville, Kentucky, for Appellants. Christian Matthew Feltner, Kentucky State Police, Frankfort, Kentucky, for Appellee.

Before: SUTTON and GRIFFIN, Circuit Judges; and DOWD, District Judge.^*

OPINION

GRIFFIN, Circuit Judge.

This case involves the shooting death of Roger King by Kentucky State Trooper Eric Taylor. Taylor, along with officers from the Sheriff's Office for Boyle County, Kentucky, were attempting to arrest King at his home. Taylor alleges that he shot and killed King in self-defense and/or in defense of his fellow officers. The administrators of King's estate brought this action, asserting claims against Taylor under the Fourth Amendment and Kentucky state law. The district court dismissed the action for lack of proper service and, alternatively, entered summary judgment in Taylor's favor on the merits. Because these rulings were error requiring reversal, we vacate the judgment of the district court and remand for further proceedings.

I.

On November 25, 2009, the Sheriff's Office for Boyle County, Kentucky, received an arrest warrant and emergency protective order for Roger King. King had allegedly entered onto his ex-wife's property, pulled a gun from his pocket, pointed it at his ex-wife's face, and said “I'm going to kill someone today.” The sheriff was commanded to arrest King on felony and misdemeanor charges stemming from the altercation. The protective order prohibited King from coming within 1,000 feet of his ex-wife or her household and ordered him to appear in court the following week.

Sheriff's deputy Jody Adams was tasked with executing the warrant and serving the protective order. The sheriff told Adams that he saw King the week before, and that King had been acting “strange [and] violent” toward him. He told Adams to obtain the assistance of the Kentucky State Police. Adams was aware that King, years earlier, had been involved in an incident with the Kentucky State Police in which King allegedly fired shots in the vicinity of a state trooper who entered onto King's property. King was eventually arrested for his actions.

Adams recruited fellow sheriff's deputy Alfred Isaacs to assist in the arrest. Isaacs contacted Kentucky State Trooper Frank Thornberry directly, who advised that he was off for the night, and that Isaacs should contact Trooper Eric Taylor, which Isaacs did. Adams, too, contacted the Kentucky State Police dispatch office to ask for assistance. Taylor was dispatched. Taylor was informed that the situation could become dangerous in light of the allegations and was told about the earlier incident between King and the state trooper. While speaking with the dispatch operator, Taylor made the following statements with respect to King: “So, my thought ... was, there shouldn't be no [Emergency Protective Order] on that guy. And [Frank Thornberry] said, well, what do you mean? I said, you don't serve an EPO on dead people. You know?”; “either [King will] be home (a); (b) he'll be home and come out shooting, you know; or (c) he'll come out, and—yeah, and one of us will have to kill—shoot him.”; “If I did [shoot him], I don't care to be off. I'll be off until after the first of the year.”; and “Well, if you don't get a hold of me [later tonight], then it may be I'm busy shooting bullets or something.”

Taylor, Adams, Isaacs, and three other deputies from Boyle County arrived at King's home around 9:00 p.m. and aimed their headlamps and spotlights towards the front of the home. Adams approached and knocked on the front door, but no one answered. Isaacs joined Adams, and the two went to a side door and knocked, but again, no answer. Isaacs went to the back of the home, and Taylor covered him with his rifle. Through two glass doors, Isaacs saw King lying on his couch in his underwear, with a blanket partially covering him. The couch faced the glass doors. Taylor signaled to Adams, and Adams joined Taylor and Isaacs on the back porch.

Isaacs and Adams approached the window; Taylor provided cover. Both men knocked on the glass door and announced their identities. Isaacs pressed the badge on his uniform sleeve up to the glass to show King he was a law enforcement officer. Taylor stood to the right of Isaacs and Adams, holding his rifle with the stock against the inside of his shoulder and the muzzle lowered just slightly, ready to aim and shoot if necessary. According to Taylor, King sat up, turned toward the officers and gave a “look of ... contempt.” King then turned away from the window. Taylor saw King's back and both of his elbows. King turned back toward the officers, and Taylor saw King's right hand come up with a gun and point it directly at the officers. Taylor raised his rifle and shot at King's midline. As discussed below, forensic evidence and expert testimony tell a different story.

The window shattered, and Adams, Isaacs, and Taylor fled for cover. It was later discovered that Taylor's bullet had struck King in the face, killing him instantly. A medical examiner for the Commonwealth of Kentucky performed an autopsy and determined that King died from a “projectile perforation of [his] medulla oblongata.”

Plaintiffs are the administrators of King's estate. They filed this action against the Commonwealth of Kentucky and Eric Taylor, in both his individual and official capacities. Suing under 42 U.S.C. § 1983, they claimed that Taylor's use of deadly force against King was unwarranted and thereby violated King's rights under the Fourth and Fourteenth Amendments. They also asserted that Taylor assaulted, battered, and acted negligently toward King by shooting him. Finally, they alleged that the Commonwealth was vicariously liable for Taylor's negligence and directly liable for failing to train him in the proper use of force.

Early in the proceedings, the Commonwealth and Taylor, in his official capacity, moved to dismiss all claims against them on the basis of sovereign immunity. Plaintiffs responded by voluntarily dismissing these claims without prejudice. SeeFed.R.Civ.P. 41(a)(1)(A)(i). The same day he moved to dismiss the claims in his official capacity, Taylor answered the complaint in his individual capacity. He asserted in his answer that the complaint should be dismissed, among other reasons, because of insufficient service of process.

Nearly a year after he answered the complaint, Taylor filed a motion asking the district court to dismiss the action for insufficient service of process, seeFed.R.Civ.P. 12(b)(5), (i), and, alternatively, to enter summary judgment on the merits in his favor, seeFed.R.Civ.P. 56(a). Plaintiffs opposed the motion. They did not dispute that they improperly served Taylor, but argued that Taylor had waived his challenge to service. They also argued that, even if Taylor's challenge were preserved, the court should extend the time to serve him under Federal Rule of Civil Procedure 4(m), even though plaintiffs could not show good cause for their failure to timely serve him. See, e.g., Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340–41 (7th Cir.1996). Plaintiffs argued that dismissing the complaint instead of giving them more time to properly serve Taylor would be draconian, as a subsequent action would be barred by the statute of limitations. The district court ruled that Taylor had not waived his defense and declined to exercise its discretion to extend the time for service. It also ruled that Taylor was entitled to summary judgment on the merits.

Plaintiffs timely appealed.

II.

We must first consider the district court's ruling on Taylor's service defense, for without proper service of process, consent, waiver, or forfeiture, a court may not exercise personal jurisdiction over a named defendant. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999); see Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987). And in the absence of personal jurisdiction, a federal court is “powerless to proceed to an adjudication.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (internal quotation marks omitted).

Plaintiffs chose to sue Taylor in his official and individual capacities. A summons was addressed to Taylor, “[care of] Morgain Sprague,” an attorney with the Office of the Kentucky State Police Legal Counsel who later represented the Commonwealth and Taylor in both capacities. The summons and a copy of the complaint were mailed to Sprague and signed for by someone in her office. Although this method of service was apparently sufficient to confer personal jurisdiction over Taylor in his official capacity—service was never challenged—it did not confer jurisdiction over him in his individual capacity. See Ecclesiastical Order of the Ism of Am, Inc. v. Chasin, 845 F.2d 113, 116 (6th Cir.1988) (per curiam). Taylor's full awareness that he had been sued makes no legal difference to the question whether he was properly served. See Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir.1991).¹ Plaintiffs concede their failure to properly serve Taylor. They seek to avoid the consequences of that failure by arguing that Taylor waived his ability to challenge the service in three different ways. We address each theory separately.

A.

First, plaintiffs contend that Taylor waived his defense by not including it in...