Johnson v. Hotel Mgmt. Servs.
| Docket Number | 3:21-CV-62 JD |
| Decision Date | 08 November 2021 |
| Parties | CHASITY JOHNSON, next friend of C.C., a minor Plaintiff, v. HOTEL MANAGEMENT SERVICES INC, Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
Now before the Court is Defendant Hotel Management Services Inc.'s (“HMS”) Motion to Quash Service of Process [DE 17] and Plaintiff Chasity Johnson's, next friend of C.C., a minor, Motion for Evidentiary Hearing on the Motion to Quash Service [DE 27]. For the following reasons, the Court grants HMS's motion to quash service in part, and denies Ms. Johnson's motion as moot.
Ms. Johnson worked as a Front Desk Clerk for one of HMS's hotel properties, called Suburban Extended Stay Hotel (“SESH”) South Bend. [DE 1]. Ms. Johnson filed her complaint against HMS on January 25, 2021 for race discrimination in violation of Title VII. Id. Ms. Johnson attempted to serve the Summons and Complaint on HMS at its alleged registered agent, CT Corporation System at 251 East Ohio Street, Suite 1100, Indianapolis, IN 46204. [DE 21-2 at 4]. However, this certified mailing was returned to Plaintiff's counsel. Id. As a result, Plaintiff's counsel decided to serve HMS at one of its properties located in Indiana. On March 16, 2021, Ms. Johnson filed a Proof of Service Affidavit (“Affidavit”). [DE 13-1]. The Affidavit was signed by Janeen A. Weldy and it states that the Summons and the Complaint was mailed to on March 9, 2021. The Affidavit states “per the USPS Tracking System, the Summons and Complaint were delivered and signed for on March 11, 2021.” Id. A copy of the USPS tracking was attached to the Affidavit, which states that the item was delivered to the front desk, reception area, or mail room. Id. at 2. The Affidavit and the USPS tracking information do not include a return receipt or any other information indicating that a person signed for the item. Id.
HMS moved to quash service of process and dismiss this action, arguing Ms. Johnson's service is wholly deficient. [DE 17]. Ms. Johnson responded in opposition, to which HMS replied. Ms. Johnson filed a motion for an evidentiary hearing on HMS's motion to quash service [DE 27], to which HMS responded and Ms. Johnson did not file a reply.
Federal Rule of Civil Procedure 4(h) provides that a corporation must be served by delivering a copy of the summons and the complaint to an officer, managing or general agent, or any other agent authorized by law to receive service or by the manner prescribed by Rule (4)(e)(1), which allows for service by following the service laws of the state where the district court is located. To serve an organization via certified mail, Indiana law requires that the certified mail be sent to “an executive officer [or] an agent appointed or deemed by law to have been appointed to receive service” and that a written receipt be produced showing who accepted the certified mail. Ind. T.R. 4.6(A)(1). Service by certified mail “is not effective unless the individual himself or a person authorized to accept service signs for the mail.” Noble Roman's, Inc. v. Rahimian, 2008 WL 4793681, at *2 (S.D. Ind. Sept. 26, 2008). Id. at 4. “[V]alid service of process is necessary in order to assert personal jurisdiction over a defendant.” Lozanovski v. Bourrell, 2018 WL 925251, at *5 (N.D. Ind. Feb. 15, 2018) (internal quotations omitted).
If a defendant is not served properly, Rule 4(m) contemplates dismissal, unless the plaintiff shows good cause for the failure:
If a defendant is not served within 90 days after the complaint is filed, the court- 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. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). In determining whether service was proper, the Court reviews the facts in a light most favorable to the non-moving plaintiff and may consider affidavits and other documentary evidence. Pike v. Decatur Mem'l Hosp., 2005 WL 2100251, at *1 (S.D. Ind. Aug. 26, 2005), report and recommendation adopted, 2005 WL 8165660 (S.D. Ind. Oct. 24, 2005).
The plaintiff bears the burden to demonstrate that the district court has jurisdiction over a defendant through effective service. Cardenas v. City of Chicago, 646 F.3d 1001, 1005 (7th Cir. 2011).
First, HMS argues that Ms. Johnson attempted service via certified mail to the wrong entity, SESH, which is a separate and distinct entity from HMS and the location where the certified mail was addressed and sent to is simply the address of one of many SESH properties.
HMS argues Ms. Johnson failed to identify the proper address or the location of HMS's registered agent and instead attempted to effectuate service on HMS at a SESH property. In response, however, Ms. Johnson argues that HMS brings its motion with unclean hands since it is not registered to do business in Indiana and does not have a registered agent according to the Indiana Secretary of State. According to the Indiana Secretary of State, the “Business Status” of HMS has been revoked. [DE 21-2 at 6]. Plaintiff's counsel attempted service via certified mail at the address listed under the “registered agent information” on the Indiana Secretary of State Business Information and this certified mailing was returned. Id. at 4, 6. Unable to serve a registered agent, Plaintiff's counsel decided to serve HMS at one of its properties located in Indiana. Ms. Johnson asserts that it is her understanding that HMS acquired the SESH South Bend property and that all of the employees at the SESH property are employees of HMS. Ms. Johnson submits what she purports to be a copy of HMS's website which lists the properties it operates in Indiana, which include the property Ms. Johnson attempted service. While the copy of the website is insufficient to establish what Ms. Johnson asserts as the Court is unable to determine that it is even HMS's website, HMS provides no response to this argument in its reply, nor does it contradict that HMS was operating the SESH South Bend property at the time of Ms. Johnson's service of process.
Second, HMS argues that even if SESH were a party to this action, service would still be deficient because Ms. Johnson entirely fails to comply with Indiana's state service laws. The Affidavit only states that the mailing was delivered to the front desk, reception area, or mail room. Ms. Johnson nor the Affidavit identify who (if anybody) signed for the certified mail. As such, HMS argues that Ms. Johnson cannot and does not establish that a person authorized by HMS to accept service signed for the mail as required under Indiana law. In response to this, Ms. Johnson argues that at the time of service USPS's COVID-19 procedures did not allow for a person to sign for certified mail. When a signature was required, the postal carriers were to ask the first initial and last name of the recipient so that they could enter that information on the electronic screen or return receipts. Id. at 13. Therefore, the USPS postal carrier signed for the delivery.
Ms Johnson argues that she intended and in fact served the General Manager of the SESH South Bend property, which she claims is an HMS employee. In support of this fact, Ms. Johnson asserts through Tawn Burnley's affidavit, who was employed as a General Manager at HMS, that when Ms. Burnley was General Manager she was trained to sign for all envelopes and packages, and then scan all mail and email it to HMS headquarters. [DE 21-1 at 1-2]. Ms. Johnson argues that under Indiana Trial Rule 83(2), an “executive officer” of an organization is defined to include “office manager” and adds that “[f]or purposes of service of process, notice and other papers, the term includes . . . any person employed under or with any of the foregoing persons and who is entrusted with responsible handling of legal papers, and any person employed in the organization if such person promptly delivers the papers served to one of the foregoing.” However, Ms. Burnley's recollection of the protocols while she was General Manager does not establish who actually signed for the certified mail at the time of service nor does Ms. Johnson know who did receive it. “[W]hile service can be permissible by certified mail, it ‘is not effective unless the individual himself or a person...
To continue reading
Request your trial