United States District Court, District of Columbia
VERONICA RAYNOR, Individually and as the Personal Representative of the Estate of Reuel Griffin, Plaintiff,
DISTRICT OF COLUMBIA, et al., Defendants.
MEMORANDUM OPINION DENYING DEFENDANT BERNADEAN
GREENE'S MOTION TO DISMISS
RUDOLPH CONTRERAS, United States District Judge
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.
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.
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.
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.
Service of Process
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.
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.
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.
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. 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.