In re Tate

• Decision Date: 23 August 2016
• Docket Number: 1:14cv125
• Court: U.S. District Court — Middle District of North Carolina
• Parties: HERMAN V. TATE, Plaintiff, v. LEWIS SMITH, et al., Defendants.

HERMAN V. TATE, Plaintiff, v. LEWIS SMITH, et al., Defendants.

1:14cv125

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

August 23, 2016

MEMORANDUM OPINION AND ORDER

This case comes before the Court on the "Petition" (Docket Entry 73) filed by Plaintiff Herman Tate ("Tate"). For the reasons that follow, the Court will deny the Petition as moot.

BACKGROUND

In February 2014, Tate commenced this action against three Albemarle Correctional officers, Lewis Smith ("Smith"), Richard Russell ("Russell"), and Wendy Brewton ("Brewton"), alleging that they illegally destroyed his property. (Docket Entry 2; see also Docket Entries 11, 66.) Through the United States Marshals Service (the "Marshals"), Tate effected service on Brewton and Russell in June and July of 2014. (Docket Entries 24, 25.) However, the Marshals could not serve Smith at the Albermarle Correctional address listed on the summons (Docket Entry 15 at 1)¹ because Smith "ha[d] retired from Albemarle CI" (Docket Entry 23 at 1). At Brewton and Russell's request (see Docket Entry 34), the Court (per United States District Judge Catherine C. Eagles) stayed this action pending resolution of related proceedings before the North Carolina Industrial Commission. (Docket Entry 40.) The stay remained in place until March 2016, at which time Tate filed an amended complaint. (See Text Order dated Mar. 11, 2016; see also Docket Entry 66.)

The following month, "Defendants Smith, Brewton and Russell" filed the "Answer to Amended Complaint Defendants Brewton, Russell, and Smith" (Docket Entry 70) (the "Answer"). In a footnote to its introductory paragraph, the Answer states:

It does not appear that Defendant Smith has been served with process in this matter, nor has the undersigned entered a Notice of Appearance on his behalf. [D.E. #20, 23, 50] However, the undersigned has answered the Complaint with his inclusion out of an abundance of caution. Defendant Smith expressly reserves the right to challenge service of process.

(Id. at 1 n.1.) Nevertheless, the Answer fails to raise insufficiency of service of process as an affirmative defense. (See id. at 5-7 (pleading nine affirmative defenses, including "fail[ure] to state a cause of action upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure" (the "Rules"), but not challenging service of process under Rule 12(b)(5)).)

Thereafter, Tate filed the Petition, asking "to have [Defendant] Smith served" and noting that Tate "pa[id] the filing fee to have [Defendant] Smith served." (Docket Entry 73.)² The Court deferred ruling on the Petition and directed Smith to file a memorandum "showing why the Court should not deem Defendant Smith to have waived any insufficient service of process defense by failing to assert such defense in [the] Answer or in any pre-answer motion to dismiss." (Text Order dated July 5, 2016 (the "Order").) The Court further ordered that "Defendant Smith's memorandum shall provide any authority that would support the view that the purported reservation of 'the right to challenge service of process' that appears in Footnote 1 of [the] Answer should impact the Court's enforcement of the waiver principles established by Federal Rule of Civil Procedure 12(h)." (Id.) In response, Smith filed "Defendant Smith's Response to 5 July 2016 (Text Only) Court Order" (Docket Entry 76) (the "Response"), "contend[ing] that the reservation noted in footnote 1 of Docket Entry 70 is sufficient to preserve his ability to challenge service in this matter and does not constitute a waiver of service" (id. at 7-8; see also id. at 8 ("[I]f the Court deems that Defendant Smith has waived this defense pursuant to Fed. R. Civ. P. 12(h), [his counsel] requests additional time to complete and file a waiver of service on behalf of Defendant Smith to cure the defect in service.")).

DISCUSSION

I. Rule 12 Standards

A defendant "must . . . assert[]" an insufficient service of process defense in either his first responsive pleading or a motion made before such pleading. Fed. R. Civ. P. 12(b).³ In so doing, the defendant must present his insufficiency of service defense "with some specificity." Patterson v. Whitlock, 392 F. App'x 185, 193 (4th Cir. 2010). Pursuant to Rule 12(h), a defendant waives his insufficiency of service defense if he "fail[s] to either: (i) make it by motion under [Rule 12]; or (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course." Fed. R. Civ. P. 12(h)(1).

As a leading federal treatise states, "the message conveyed by the present version of Rule 12(h)(1) seems quite clear. It advises a litigant to exercise great diligence in challenging personal jurisdiction, venue, or service of process" (i.e., the Rule 12(b)(2)-(5) defenses). 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1391 (3d ed. 1998, Apr. 2016 update). "Known as 'the "raise or waive" rule,' Rule 12(h) operates 'to expedite and simplify proceedings' by ensuring that parties do not 'delay[] consideration of th[e] threshold issue[s]' identified in Rule 12(b)(2)-(5)." Branson v. American Int'l Indus., No. 1:15cv73, 2016 WL 3190222, at *3 (M.D.N.C. June 7, 2016) (alterations in original) (first quoting Plunkett v. Valhalla Inv. Servs., Inc., 409 F. Supp. 2d 39, 41 (D. Mass. 2006); then quoting Yeldell v. Tutt, 913 F.2d 533, 539 (8th Cir. 1990)), adopted, slip op. (M.D.N.C. June 27, 2016); see also Manchester Knitted Fashions, Inc. v. Amalgamated Cotton Garment & Allied Indus. Fund, 967 F.2d 688, 691 (1st Cir. 1992) ("The purpose of Rule 12 is to eliminate unnecessary delays in the early pleading stages of a suit so that all available Rule 12 defenses are advanced before consideration of the merits.").

Thus, "defendants wishing to raise [a Rule 12(b)(5) insufficiency of service of process defense] must do so in their first defensive move, be it a Rule 12 motion or a responsive pleading." Manchester Knitted Fashions, 967 F.2d at 692 (emphasis in original; internal quotation marks omitted). Finally, in addition to losing an insufficiency of service defense under Rule 12(h)'s "strict waiver rule," Glater v. Eli Lilly & Co., 712 F.2d 735, 738 (1st Cir. 1983), a defendant can also forfeit this defense by his conduct in the litigation. Patterson, 392 F. App'x at 193 (concluding that defendants waived their insufficiency of service of process defense by "fil[ing] an Answer that attacked the sufficiency of process in barebones fashion only, and then waited over a year before submitting a Rule 12 motion actually spelling out the missing pages contention"); see also Branson, 2016 WL 3190222, at *3, *6 n.6 (discussing waiver principles and concluding that defendant relinquished Rule 12(b) defense).

II. Smith's Response

Smith devotes the majority of his Response to a recitation of this action's procedural history and a discussion of service principles. (Docket Entry 76 at 1-7.) In particular, Smith maintains that "[a] court cannot exercise personal jurisdiction over a party until it has been properly served in accordance with the applicable Rules." (Id. at 5.) Indeed, "[s]ervice 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).

However, unlike subject matter jurisdiction, "personal jurisdiction is waivable," Rector v. Approved Fed. Sav. Bank, 265 F.3d 248, 253 n.2 (4th Cir. 2001), because it merely "represents a restriction on judicial power . . . as a matter of individual liberty," Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999) (ellipsis in original; internal quotation marks omitted). As such, "a party must insist that the limitation be observed, or he may forgo that right, effectively consenting to the court's exercise of adjudicatory authority." Rector, 265 F.3d at 253 n.2 (internal quotation marks omitted); accord Ruhrgas, 526 U.S. at 584 (citing Rule 12(h)(1)); see also Porsche Cars N. Am., Inc. v. Porsche.net, 302 F.3d 248, 256 (4th Cir. 2002) (explaining that "personal jurisdiction is indubitably waived absent timely objection," and citing, inter alia, Rule 12(h)). Accordingly, "[t]he Fourth Circuit has found that lack of service deprives the court of personal jurisdiction over the defendant, but that the defendant can waive the defense of lack of personal jurisdiction." In re: Ethicon, Inc., Pelvic Repair Sys. Prods. Liab. Litig., MDL No. 2327, Civ. Action No. 2:12-cv-05719, 2016 WL 1718826, at *2 (S.D. W. Va. Apr. 27, 2016) (first discussing Pusey v. Dallas Corp., 938 F.2d 498 (4th Cir. 1991); then discussing Foster v. Arletty 3 Sarl, 278 F.3d 409 (4th Cir. 2002)); see also Pardazi, 896 F.2d at 1317 ("Objections to service of process, however, like any other objection to jurisdiction over the person, can be waived by the party over whom jurisdiction is sought.").

Smith has never sought dismissal from this action on the grounds of insufficient service of process. (See Docket Entries dated Feb. 10, 2014, to present.) Nevertheless, Smith faults the Court for failing to dismiss him: "At best, this Court was required to dismiss Defendant Smith after August 19, 2014, pursuant to Rule 4(m), but failed to do so" (Docket Entry 76 at 7). Rule 4(m) provides that, "[i]f a defendant is not served within [a certain number of] days after the complaint is filed, the [C]ourt — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time." Fed. R. Civ. P. 4(m).⁴ Hence, contrary to Smith's contention, Rule 4(m) provides two options for resolving tardy service: dismissal or directing that service occur within a certain period. See id.

Furthermore, the Court bears no obligation to initiate such action sua sponte. See Pardazi, 896 F.2d at 1316 n.2 (concluding that ...