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Anitra Pollard, et al v. District of Columbia

August 10, 2012


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Plaintiffs Anitra Pollard (as guardian and conservator of Kevin Witherspoon) and Lakeisha Witherspoon (sister of Kevin Witherspoon) bring this 42 U.S.C. § 1983 action against defendants, the District of Columbia and eight District employees in both their official and individual capacities. Plaintiffs allege in 16 counts that defendants unlawfully injured Kevin Witherspoon, a mentally disabled man, by, among other things, using him as a police informant and wrongfully imprisoning him. Four of the individual defendants -- Sherman Anderson, Hampton D. Durham, Christopher A. Hall, and Desiree Walker, all officers in the Metropolitan Police Department ("MPD") in the Narcotics and Special Investigations Division ("NSID") ("Moving Defendants") -- have filed motions to quash proof of service.*fn1 For the reasons stated herein, the Court will grant the motions to quash and direct plaintiffs to perfect service.


Plaintiffs filed their complaint on June 20, 2012. On June 25, 2012, plaintiffs filed an affidavit of service for each Moving Defendant. (Anderson Aff. of Service (Dkt. No. 5); Durham Aff. of Service (Dkt. No. 6); Hall Aff. of Service (Dkt. No. 8); Walker Aff. of Service (Dkt. No. 11).) According to the affidavits, the process server, Devin Brian Howell, served defendants Anderson, Durham, and Hall on June 22, 2012, by giving a copy of the summons and complaint to Lieutenant Brian Murphy at the NSID headquarters (1215 Third Street N.E., Washington, D.C.), and he served defendant Walker on June 23, 2012, by giving a copy of the summons and complaint to Captain Lamar West at the MPD First District Substation (500 E Street S.E., Washington, D.C.). The affidavits state that Murphy and West were "designated and authorized by law to accept service of process on behalf of [the named defendant]." (See, e.g., Anderson Aff. of Serv. at 1.) Each Moving Defendant has filed a motion to quash proof of service on the ground that the person who accepted service, either Murphy or West, was "not authorized . . . to receive service of process" on behalf of the Moving Defendant. (See Hall Mot. to Quash at 1 (Dkt. No. 14); Anderson Mot. to Quash at 1 (Dkt. No. 15)*fn2 ; Durham Mot. to Quash at 1 (Dkt. No. 19); Walker Mot. to Quash at 1 (Dkt. No. 22).) Attached to each motion is an affidavit from the corresponding defendant stating that "I did not designate or authorize [the person served] to accept service of process on my behalf." (Anderson Aff. ¶ 4; Hall. Aff. ¶ 4; Durham Aff. ¶ 4; Walker Aff. ¶ 4.*fn3

Plaintiffs oppose the motions to quash, asserting that they had a "factual basis for believing" Murphy and West were "designated, or authorized, or approved, or appointed to accept service of process for defendant in this case by the surrounding circumstances." (Pls. Opp'n to Hall Mot. at 1 (Dkt. No. 20); Pls. Opp'n to Durham Mot. at 1 (Dkt. No. 21); Pls. Opp'n to Anderson Mot. at 1 (Dkt. No. 22); Pls. Opp'n to Walker Mot. at 1 (Dkt. No. 24).) To support this contention, plaintiffs submitted with their opposition affidavits from (1) Darlene Lucille Eubank Howell ("Darlene Aff."); (2) Roy Carleton Howell ("Roy Aff."), plaintiffs' counsel; and (3) Devin Brian Howell ("Devin Aff."), the process server.*fn4 Darlene Howell's affidavit describes a failed attempt to serve defendants Anderson, Durham and Hall on June 20, 2012, through Sergeant Skelton at the NSID.*fn5 (Darlene Aff. ¶ 19.) Roy Howell's affidavit states that he had a conversation on June 21, 2012, with Brenda Gilmore, MPD Assistant General Counsel, who told him that Lieutenant Murphy would "have the officers available for service of process or officially accept service of process on their behalf" on June 22, 2012. (Roy Aff. ¶ 9.) The affidavit further states that on June 22, 2012, acting on Gilmore's advice, Roy Howell and Devin Howell went to NSID headquarters, where Lieutenant Murphy officially accepted service on behalf of defendants Anderson, Durham and Hall, stating that he was authorized to do so. (Roy Aff. ¶¶ 2--15.) Finally, Devin Howell's affidavit states that, after learning from Lieutenant Murphy on June 22, 2012, that defendant Walker had transferred to MPD First District Substation, he went there on June 23, 2012, and gave the summons and complaint to "Commander Captain Lamar Walker [sic] . . . who stated he was authorized to accept service" on defendant Walker's behalf. (Devin Aff. ¶¶ 2--11.)*fn6


Plaintiffs contend that the Moving Defendants have been properly served pursuant to Rule 4(e)(2) because Lieutenant Murphy and Captain West were each "agent[s] authorized by appointment . . . to receive service of process," Fed. R. Civ. P. 4(e)(2), while the Moving Defendants have denied authorizing any other person to accept service on their behalf.*fn7

"Without valid service of summons or a waiver of service, the Court cannot establish proper venue and personal jurisdiction over the defendants, and the case may not proceed." Mann v. Castiel, 729 F. Supp. 2d 191, 196 (D.D.C. 2010) (citing Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 94, 104 (1987)).*fn8 "A signed return of service . . . constitutes prima facie evidence of valid service, which can be overcome only by strong and convincing evidence." Gates v. Syrian Arab Republic, 646 F. Supp. 2d 79, 85--86 (D.D.C. 2009) (citing O'Brien v. R.J. O'Brien Assocs., Inc., 998 F.2d 1394, 1398 (7th Cir. 1993)); accord 62B Am. Jur. 2d Process § 294. However, once challenged, the plaintiff bears the burden of showing valid service by a preponderance of the evidence. Gates, 646 F. Supp. 2d at 84 (citing Koerner v. United States, 246 F.R.D. 45, 47 (D.D.C. 2007)); Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987) ("[T]he party on whose behalf service is made has the burden of establishing its validity when challenged; to do so, he must demonstrate that the procedure employed satisfied the requirements of the relevant portions of Rule 4").*fn9

To establish agency by appointment, "an actual appointment for the specific purpose of receiving process normally is expected." 4A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1097 (3d ed. 2002). "Claims by an agent of having authority to receive process or the fact that an agent actually accepts process is not enough to bind the defendant to the court's jurisdiction; there must be evidence that the defendant intended to confer that authority upon the agent in order to satisfy the terms of Rule 4(e)(2)." Id. "The rule is clear that it must appear that any agent who accepts service must be shown to have been authorized to bind his principal by the acceptance of process and, further, that the authority to accept such service cannot be shown by the extra-judicial statements of the [agent]." Schwartz v. Thomas, 222 F.2d 305, 308 (D.C. Cir. 1955); accord Brodie v. Worthington, 2011 WL 4402783, at *1 (D.D.C. Sept. 21, 2011) ("even if the Court construed" letters from the alleged agent "as a claim of authority to receive service for him," plaintiff would still be required to "produce evidence that [defendant] actually intended to confer such authority"). For example, a clerk may not be authorized to receive service on another's behalf even though she "represented herself as such on the receipt," since "acceptance of service and . . . statements of authority are, in and of themselves insufficient to establish the required agency relationship." First Amer. Bank, N.A. v. United Equity Corp., 89 F.R.D. 81, 84 (D.D.C. 1981).

Although actual appointment is required, evidence of "the requisite intent" of defendant to make that appointment may be "implied . . . from the circumstances surrounding the service upon the agent." Wright & Miller, supra, § 1097. "The federal courts look to the circumstances of the agency relationship, and although authority to accept process need not be explicit, it must either be express or implied from the type of relationship that has been established between the defendant and the alleged agent"; put differently, there must be a "factual basis for believing that an appointment" to receive process had been made. Id.; accord United States v. Ziegler Bolt & Parts Co., 111 F.3d 878, 881 (Fed. Cir. 1997) ("An agent's authority to accept service may be implied in fact," but the party seeking to demonstrate such authority must "present facts and circumstances showing the proper relationship between the defendant and its alleged agent"). Implied authorization is found only in the rare case. See, e.g., Thelen v. City of Elba, 2009 WL 212940, at *5 (D. Minn. Jan. 28, 2009) (service on defendant's agent was impliedly authorized where the agent, defendants' attorney, "told [the plaintiffs] in no uncertain terms" that he represented defendants and had received a copy of the complaint, instructed the plaintiffs to "not contact those [d]efendants 'either by letter or in person,'" and directed plaintiffs "to convey 'all inquiries' to him or his office").

Two factually similar cases convince the Court that service was not proper in this case. In Fenwick v. United States, 691 F. Supp. 2d 108 (D.D.C. 2010), defendants challenged the validity of service of process where an employee of the general counsel's office of the U.S. Marshals Service accepted service in an office lobby on behalf of three deputy U.S. marshals sued in their individual capacity. The deputy marshals produced affidavits from the general counsel's employee stating that he told the process server over the phone and later in the lobby that he was not authorized to accept service on behalf of Marshals Service employees sued in their individual capacities, as well as affidavits from defendants stating that they had never authorized the general counsel's employee to accept service on their behalf. Id. at 112--13. The plaintiff, however, asserted that the employee had claimed to be authorized to accept service on the deputies' behalf. Id. at 113. The court found service ineffective, regardless of what the employee told plaintiff, as plaintiff failed to demonstrate "any intent on the part of the deputies to authorize [the employee] to receive service on their behalf." Id.

Tindle v. Xenos, 2010 WL 4739787 (E.D. Mich. Nov. 16, 2010) also involved similar facts. In Tindle, plaintiff sought to serve sixteen sheriff's deputies in a federal civil rights suit. Id. at *1. Plaintiff's process server contacted the sheriff's department counsel, who informed him that "'she would accept service for all of the defendants' in the case." Id. Later, defendants moved to quash service, asserting that they had never authorized sheriff's counsel to accept service on their behalf. Id. The court quashed the return of summons, finding that while plaintiff "appears to have relied in good faith" on the sheriff's counsel's "understanding and assertion of her own authority," there was insufficient evidence of express or implied authorization. Id. at *2.

The record here is similarly lacking in any evidence that defendants Anderson, Durham, Hall, and Walker actually or by implication authorized an agent to accept service on their behalf. Accordingly, the Court finds that none of these ...

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