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Raynor v. District of Columbia

United States District Court, District of Columbia

November 3, 2017

VERONICA RAYNOR, Individually and as the Personal Representative of the Estate of Reuel Griffin, Plaintiff,
v.
DISTRICT OF COLUMBIA, et al., Defendants.

          MEMORANDUM OPINION DENYING DEFENDANT BERNADEAN GREENE'S MOTION TO DISMISS

          RUDOLPH CONTRERAS, United States District Judge

         I. INTRODUCTION

         On April 29, 2014, Plaintiff Veronica Raynor filed this action against the District of Columbia and several other defendants, including Bernadean Greene, based on the death of Reuel Griffin at Saint Elizabeth's Hospital in 2012. See generally Compl., ECF No. 1. However, in the more than two years after Ms. Greene was supposedly served and this case was being actively litigated, neither side seemed to notice that Ms. Greene had not actually responded to the Complaint. This case now comes before the Court on Ms. Greene's Motion to Dismiss under Rule 12(b)(5) of the Federal Rules of Civil Procedure for insufficient service of process. For the reasons stated below, the Court denies Defendant's Motion to Dismiss without prejudice.

         II. FACTUAL BACKGROUND

         On April 29, 2014, Veronica Raynor filed a Complaint against the District of Columbia and several other defendants, including Ms. Greene, alleging that they negligently caused the death of Reuel Griffin on January 31, 2012. See generally Compl. Ms. Raynor claims that, beginning in August 2014, she attempted to identify Ms. Greene's home address in order to properly serve her with the Complaint. See Pl.'s Opp'n to Def.'s Mot. Dismiss (“Pl.'s Opp'n”) at 2, ECF No. 108. Although the District of Columbia provided Ms. Raynor with Ms. Greene's supposed address, it later proved incorrect. See Pl.'s Opp'n at 2. Thereafter, Ms. Raynor requested that the District provide Ms. Greene's social security number so that a private investigator might use it to locate her. See Pl.'s Opp'n at 2. The District initially denied the request and instead provided a second address, but that too was incorrect. See Pl.'s Opp'n at 2. As a result, and after several more requests from Ms. Raynor, the District finally agreed to provide Ms. Greene's social security number. See Pl.'s Opp'n at 2. Through investigative methods not revealed to the Court, Ms. Raynor's private investigator determined that Ms. Greene “reside[d] with her sister . . . at 4714 Alabama Avenue, SE, Washington, DC, ” Pl.'s Opp'n, Ex. A, and, on July 13, 2015, a process server left the summons and a copy of the Complaint with Ms. Greene's sister at that address, See Pl.'s Opp'n at 2.

         Ms. Greene, however, never answered or otherwise responded to Ms. Raynor's Complaint. But, Ms. Raynor apparently failed to notice because she never filed a motion for default judgment. Nevertheless, in November 2016-more than a year later-defense counsel entered appearances on behalf of “all defendants, ” without exception, and proceeded to file papers with this Court on their behalf, including Ms. Greene-though defense counsel now claims that this was in error. These filings include various notices, status reports, a motion to stay, as well as a motion to compel discovery and an opposition to a motion to compel. See ECF Nos., 70-72, 77, 83, 85, 88, 90, 93-94, 103, 105. Then, on July 20, 2017, Ms. Greene filed a motion to dismiss the Complaint for insufficient service of process because, according to her, she did not reside at 4717 Alabama Avenue SE at the time the summons and Complaint were delivered to that address. See generally Def.'s Mot. Dismiss, ECF No. 106; Greene Decl. at ¶ 2, ECF. No. 106-1.

         III. ANALYSIS

         For the reasons explained below, the Court finds Plaintiff has not met her burden in establishing proper service of process on Ms. Greene and that Ms. Greene did not waive service of process through the errant filings of her counsel. Nevertheless, the Court finds that good cause exists to allow Plaintiff additional time to properly effect service of process. Accordingly, the Court denies Ms. Greene's Motion to Dismiss without prejudice and subject to renewal. Additionally, Plaintiff is ordered to effect service on Ms. Greene within 30 days.

         A. Service of Process

         “Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.” Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987); accord Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 514 (D.C. Cir. 2002). However, when the propriety of service is challenged, it is the plaintiff that “bears the burden of proving that she has effected proper service.” Jouanny v. Embassy of France in the United States, 220 F.Supp.3d 34, 37-38 (D.D.C. 2016) (citing Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987)). “[T]o do so, [s]he must demonstrate that the procedure employed satisfied the requirements of the relevant portions of Rule 4 [of the Federal Rules of Civil Procedure] and any other applicable provision of law.” Light, 816 F.2d at 751 (quoting Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1083 (4th Ed. 2017). If the plaintiff fails to meet her burden, then the court necessarily “lacks authority to exercise personal jurisdiction over the defendant.” Jouanny, 220 F.Supp. at 38 (citing Candido v. District of Columbia, 242 F.R.D. 151, 160 (D.D.C. 2007)). Thus, improper service constitutes a “fatal jurisdictional defect, and is grounds for dismissal.” Id.

         In this case, Ms. Raynor argues that service on Ms. Greene was properly effected under Rule 4(e)(2)(B) of the Federal Rules of Civil Procedure. That Rule states that an individual may be served in a judicial district of the United States by “leaving a copy of [the summons and complaint] at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there.” Fed.R.Civ.P. 4(e)(2)(B). Ms. Raynor contends that she made “reasonable and diligent efforts” to locate Ms. Greene's dwelling and points out that the Proof of Service, which constitutes prima facie evidence of valid service, includes the process server's attestation that “Ms. Greene's sister . . . accepted service on [Ms. Green's] behalf. . . .” Pl.'s Opp'n at 4. Ms. Greene, however, contends that service was not properly effected under the Rule because she, in fact, did not “reside” at 4717 Alabama Avenue SE on July 13, 2015. See Def.'s Mot. Dismiss at 3. Her declaration, however, is silent on how she defines “reside” or whether that address was her “usual place of abode” at the time.

         While it is true that a signed return of service constitutes “prima facie evidence of valid service, ” Gates v. Syrian Arab Republic, 646 F.Supp.2d 79, 85-86 (D.D.C. 2009), it is by no means definitive evidence. Indeed, many courts have found that, under circumstances similar to those presented here, plaintiffs had not met their burden to establish proper service when they offered nothing more than conclusory statements in the face of competing evidence. See, e.g., Kammona v. Onteco, Corp., 587 F. App'x 575, 578 (11th Cir. 2014) (affirming dismissal where plaintiff offered “no evidence to support his assertion that, at the time of service [the defendant] resided at the address served.”); In re Barkats, No. 14-00053, 2014 WL 2993723, *4 (D.D.C. July 3, 2013) (finding that “the mere listing of an address on court papers, filed in a different court, is not enough to carry the . . . burden of proof to demonstrate that the service address was the debtor's ‘dwelling or usual place of abode.'”); Winder v. Erste, No. 03-2623, 2005 WL 736639, *3 (D.D.C. March 31, 2005) (“Plaintiff offers no evidence that contradicts [defendant's] affidavit stating that he was not a resident at the place of service . . . . Plaintiff only makes conclusory assertions that [defendant's] evidence is insufficient to establish the absence of residency . . . an argument based on the presumption that the defendant bears the burden of proving the insufficiency of service of process.”). For example, in In re Barkats, creditors attempted to serve a debtor with a summons and involuntary bankruptcy petition at an address that the debtor had previously listed on court filings in D.C. Superior Court. See In re Barkats, 2014 WL 2993723, at *1. The debtor contested the service, claiming that the address actually belonged to a friend of his and that he had only listed it to provide a local address for mail from the D.C. Court of Appeals. See Id. The bankruptcy court held that the creditors failed to establish proper service because they did not provide sufficient evidence demonstrating that the debtor ever “owned the property in question.” Id. at *4. Because the “only evidence the debtor ever resided at the service address-temporarily or otherwise-[was] that the address was listed as a mailing address on a paper filed by the debtor's attorney in the D.C. Superior Court, ” the bankruptcy court could not find that the creditors had met their burden. Id. Despite the fact that the creditors claimed to have acted in good faith, the Barkats Court noted that “no amount of good faith on the petitioning creditors' part [could] overcome th[e] fact” that service was improper. Id.

         In this case, the weight of the evidence does not sufficiently support Plaintiff's claims that Ms. Greene was properly served under Rule 4. Ms. Greene's attests that she did not “reside” at 4714 Alabama Avenue SE on July 13, 2015 when service was made at the address. Thus, Ms. Raynor must bear the burden of proving that the address was Ms. Greene's “dwelling or usual place of abode.” See Light, 816 F.2d at 751 (D.C. Cir. 1987). But the only evidence that Ms. Raynor can muster is the signed return of service and a private investigator's letter. See Proof of Service, ECF No. 51; Pl.'s Opp'n, Exhibit A, ECF No. 108-1. The proof of service, however, simply asserts, without explanation, that the process server left the summons at Ms. Greene's “residence or usual place of abode” with Ms. Greene's sister.[1] Proof of Service, ECF No. 51. Likewise, the investigator's letter, which was not made under the pain of perjury, merely repeats that conclusion, stating that the investigator “found [Ms. Greene] residing with her sister . . . at 4714 Alabama Avenue SE.” Pl.'s Opp'n, Exhibit A. But, like the return of service, it provides no factual basis for the claim. See Pl.'s Opp'n, Exhibit A. Without more, these bare assertions are simply not enough to establish that the service address was Ms. Greene's dwelling or usual place of abode. See Kammona, 587 F. App'x at 578; Barkats, 2014 WL 2993723 at *4; Winder 2005 WL 736639 at *3. At best, the evidence is in equipoise, in which case the Court cannot say that Ms. Raynor carried her burden. Thus, Ms. Raynor has failed to show that Ms. Greene was properly served under Rule 4.

         B. ...


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