Smith v. Sentry Ins.

• Decision Date: 18 November 1987
• Docket Number: Civ. A. No. C86-1176A.
• Citation: 674 F. Supp. 1459
• Parties: James SMITH, Plaintiff, v. SENTRY INSURANCE, a Mutual Company, Burton G. Boldebuck, Michael G. Hickey, Linda Toole, Ron Heck, Steve Peterson, Bruce Davidson, Larry Ballard, Defendants.
• Court: U.S. District Court — Northern District of Georgia

674 F. Supp. 1459

James SMITH, Plaintiff, v. SENTRY INSURANCE, a Mutual Company, Burton G. Boldebuck, Michael G. Hickey, Linda Toole, Ron Heck, Steve Peterson, Bruce Davidson, Larry Ballard, Defendants.

Civ. A. No. C86-1176A.

United States District Court, N.D. Georgia, Atlanta Division.

November 18, 1987.

COPYRIGHT MATERIAL OMITTED

John R. Gaughen, Spearman, Dunham & Gaughen, Atlanta, Ga., for plaintiff.

Charles A. Edwards, Graham & James, Raleigh, N.C., Alfred B. Adams, III, Atlanta, Ga., for defendants.

ORDER

FORRESTER, District Judge.

This action is before the court on defendants' motion for leave to file a motion for summary judgment out of time, request to be granted leave, nunc pro tunc, to file a brief in excess of twenty-five pages, motions to dismiss, and motions for summary judgment. These motions will be considered seriatim.

I. LEAVE TO FILE MOTION FOR SUMMARY JUDGMENT.

Defendants' proposed motion for summary judgment addresses the merits of plaintiff's age discrimination claim and state tort claim. Complaint, Counts I & III. This motion for summary judgment follows timely summary judgment motions which attack plaintiff's complaint on procedural grounds. Defendants contend that they did not file this second motion for summary judgment before the expiration of discovery because they were awaiting the transcription of depositions of various individual defendants taken by plaintiff toward the end of the discovery period. While it would have been preferable for defendants to seek leave to file the proposed summary judgment motion prior to the conclusion of the discovery period, plaintiff offers no substantive reason for denying the leave which defendants seek now. Entertaining the proposed summary judgment motion may well simplify matters for trial or dispense with the need for a trial. For this reason, defendants' motion for leave to file motion for summary judgment out of time is GRANTED. Plaintiff is given twenty (20) days from receipt of this order to file a reply brief.

Defendants filed the proposed motion for summary judgment with the court at the same time they sought leave for the filing of the motion. The proposed brief in support of defendants' motion is thirty-six pages in length. The proposed brief is not padded with quotations from depositions or other unnecessary material, but addresses the complex application of the law to the facts of this case. In view of the fact that the extensive briefing is justified by the circumstances of this case, defendants' request for leave to file a brief in excess of twenty-five pages is GRANTED.

II. MOTION TO DISMISS.

Defendants Burton G. Boldebuck, Ron Heck, Steve Peterson, Bruce Davidson, and Larry Ballard have moved to dismiss plaintiff's complaint pursuant to Rule 4(j) of the Federal Rules of Civil Procedure. Plaintiff first attempted to serve these defendants by certified mail, but the court quashed such service as an ineffective manner of serving a non-resident party under Georgia's long-arm statute. See Order of September 17, 1986, at 11 (citing Fed.R.Civ.P. 4(e) & O.C.G.A. § 9-10-94). Plaintiff again attempted to serve these defendants by personal process server on February 23, 1987. The return of this process server indicates that he left a summons and copy of a complaint for each of these defendants at their place of business in care of defendant Bruce Davidson. See Motion to Dismiss, Exhibits A & B. However, the receptionist on duty at defendants' offices has testified that the summonses and complaints were actually delivered to her by the process server who did not request that she forward the summonses and complaints to these defendants. Affidavit of Rebecca Raciborski, March 4, 1987.

Defendants contend that the service upon their receptionist is an ineffective method of service upon non-residents under Georgia law. Fed.R.Civ.P. 4(e). Georgia's long-arm statute authorizes service upon non-residents in the same manner as service upon residents. O.C.G.A. § 9-10-94. Because service upon residents may be effected by leaving the complaint and summons with the resident "personally, or by leaving copies thereof at his dwelling house or usual place of abode," O.C.G.A. § 9-11-4(d)(7), defendants contend that they have not been effectively served. Defendants point out that service of a receptionist or a secretary is not effective service under Georgia law unless that person is an agent authorized to receive service of process on behalf of the party. See, e.g., Headrick v. Fordham, 154 Ga.App. 415, 268 S.E.2d 753 (1980). In addition to seeking dismissal of plaintiff's complaint against them, these defendants request that sanctions be levied against plaintiff's counsel whose ill-fated efforts to perfect service of process have allegedly multiplied the proceedings in this case "unreasonably and vexatiously." 28 U.S.C. § 1927.

Plaintiff's counsel has responded to the foregoing arguments and allegations by stating that he relied upon the personal process server to serve defendants personally at their place of business. He states that the process server assured him through his legal assistant that defendant Bruce Davidson had agreed to accept service on behalf of the other defendants and that defendant Davidson was served with the summonses and complaints. Response at 3; see also Aff. of Connie Keenum at 2. Although the return on the summons to defendant Davidson does in fact indicate that he personally received the summons and a copy of the complaint, the defendants have impeached this return as untrue. Wolfe v. Rhodes, 166 Ga.App. 845, 487, 305 S.E.2d 606 (1983). Defendants have discharged their heavy burden of proving that the facts of service were other than as stated by the return. Id. Therefore, the court concludes that none of these defendants, including defendant Davidson, was personally served with a complaint and summons, but rather received service secondhand through their receptionist who was not authorized to receive service of process on their behalf.

Because this second attempt at service of process upon these defendants was ineffective, plaintiff has failed to perfect service of process within 120 days after the filing of the complaint. Fed.R.Civ.P. 4(j). Indeed, well over 120 days have elapsed since this court quashed plaintiff's first attempted service, thereby giving plaintiff the opportunity to perfect service upon these defendants. See Order of September 17, 1986, at 10-12. Under these circumstances, Rule 4(j) provides for dismissal if "the party on whose behalf such service is required cannot show good cause why such service was not made" within the prescribed 120 day period. Thus, plaintiff can only avoid dismissal if he can demonstrate "good cause" for failing to perfect service. In this regard, plaintiff submits as evidence the affidavit testimony of Connie Keenum, a legal assistant to plaintiff's counsel, and Officer Jack Mrozinski, a Portage County, Wisconsin, Sheriff's Deputy. This testimony suggests that plaintiff's counsel had no notice of the defective service. In addition to the inaccurate return, reference is made to a "long-standing agreement" between the Portage County Sheriff's Department and Sentry World Headquarters whereby service may be perfected upon an officer of Sentry by serving the secretary to that particular officer. See Keenum Aff. at 3; see also Mrozinski Aff. at 2. In view of this evidence, the court concludes that plaintiff's failure to effect proper service on defendants is due in large part to the process server's negligence; i.e., failure to insure that the person receiving service was so authorized, failure to complete the return accurately, etc. While more diligence on the part of plaintiff's counsel conceivably could have revealed the defects in service prior to expiration of the 120 day period, the court believes reasonable diligence was exercised. For this reason, the court concludes that "good cause" has been demonstrated and thus, defendants' motion to dismiss is DENIED. The court will allow plaintiff two weeks from receipt of this order to perfect service of process on defendants.¹ Failure to do so will result in dismissal as to these defendants.

Although the failure of plaintiff's counsel to perfect service of process has clearly multiplied proceedings in this action, the court concludes that an award of attorney's fees and expenses pursuant to section 1927 is unwarranted. The reason for service is primarily to provide notice of an action. Clearly, defendants have had notice by both the mailing and the technically-incorrect attempt at personal service. There is no evidence of prejudice to the defendants. The proceedings and costs have been multiplied primarily because of hyper-technical strategies employed by defendants. While the defendants are certainly entitled to stand on the rights protected herein, this court does not believe that such a quibbling position ought to be encouraged with an award of attorney's fees.

III. DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT.

Defendant Sentry has moved for summary judgment with respect to Count II. The individual defendants have separately moved for summary judgment with respect to all three counts of plaintiff's complaint. In view of the foregoing ruling on defendants Boldebuck, Heck, Peterson, Davidson and Ballard's motion to dismiss, the court will stay consideration of the motion for summary judgment by these defendants pending plaintiff's perfecting service of process on them within the above-prescribed time period. The court will address the merits of the motion for summary judgment filed by defendant Sentry and the motion for summary judgment filed by defendants Michael Hickey and Linda L. Toole. Because these motions do overlap with respect to Count II, the court will rule upon these motions by addressing defendants' respective arguments regarding each count of plaintiff's complaint. Before turning to the arguments made by defe...