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Byrd v. Comfort Inn-Tupelo

United States District Court, N.D. Mississippi, Aberdeen Division

May 21, 2018



         Before this Court are two motions to dismiss for insufficient service of process [37, 39] filed by LeeB2, LLC, ABRMP Management LLC, and Bruce Patel. Having considered the matter, the Court finds the motions should be granted.


         Plaintiff Mary John Garrett Byrd alleges that, while she was a guest at the Comfort Inn in Tupelo, Mississippi, employees of the hotel entered her room without notice and had an officer of the Tupelo Police Department arrest her without cause. See Compl. [1] ¶ 7. She now sues several entities and individuals who owned, managed, and worked at the hotel for civil rights violations and state law tort claims.

         Despite the entirety of the incident occurring in Tupelo, which is located in this district, and despite the fact that all defendants appear to reside within this district, Byrd filed this suit in the United States District Court for the Middle District of Alabama. The complaint named four defendants: corporate defendants Comfort-Inn Tupelo and Fusion Hospitality, LLC, and individual defendants Bruce Patel and Amanda Daniels.[1] That court transferred venue to this Court on February 2, 2018.

         Before the case had been transferred, Byrd attempted to serve each of the Defendants by certified mail as permitted under Alabama Rules of Civil Procedure. According to the return receipts [Doc. Nos. 5 through 6] Byrd mailed summons to each of the Defendants at the same address-the physical address of the Comfort Inn in Tupelo. The return receipt addressed to Fusion Hospitality was signed by "M. Jones." [5] The return receipts addressed to Amanda Daniels and Bruce Patel were signed by "DSM." [6] The return receipt addressed to Comfort-Inn is signed by "N. DePriest." [7]

         LeeB2, LLC, ABRMP Management, LLC, and Bruce Patel now move to dismiss the complaint against all defendants, arguing that Byrd did not serve any of them with sufficient process. Byrd has not responded, the time to do so has passed. The matter is ripe for review.

         Legal Standard under Rule 12(b)(5) for Insufficient Service of Process

         A motion pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure challenges the mode of delivery or lack of delivery of the summons and complaint. A Rule 12(b)(5) motion "turns on the legal sufficiency of the service of process." Holly v. Metro. Transit Auth, 213 Fed.Appx. 343, 344 (5th Cir. 2007). The party making the service has the burden of demonstrating the validity of service when an objection to that service is presented to the court. Carimi v. Royal Caribbean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992).


         Defendants argue that Byrd has failed to obtain sufficient service of process against them because there is no proof the summons was delivered to the appropriate persons. Byrd bears the burden of showing that service was sufficient. She has failed to respond, and therefore this Court could grant Defendants motion for that reason alone. However, Defendants motions are also due to be granted on their merits.

         The Federal Rules of Civil Procedure do not provide for service of process by certified mail. Though the rules do provide for obtaining a waiver of service by mail, there is no indication that Defendants have made such a waiver. See Fed. R. Civ. P 4(d). Thus, service of process on Defendants was only proper if it was done in accordance with state law in either the state where the district court was located (Alabama) or where service was made (Mississippi) pursuant to Rule 4(e)(1).

         Mississippi's rules provide that a person located in the state may be served by mail if the plaintiff provides, along with the summons and complaint, a notice and acknowledgement of service to be returned to the plaintiff by defendant. Miss. R. Civ. P.. 4(c)(3)(A). However, if the acknowledgement is not returned, service must be made in another manner permitted by the rules. Id. 4(c)(3)(B).

         Byrd served Daniels and Patel, Mississippi residents, by mail, but there is no evidence that she obtained an acknowledgement of service of process from either Patel or Daniels. Further, she has not submitted any evidence that she served them in any other manner. Thus, there was insufficient service of process under Mississippi law.

         Alabama law permits the service of individuals by certified mail. Al. R. Civ. P. 4(i)(2). Such service of process is complete only when the return receipt has been signed by "the named addressee or the addressee's agent." Id. 4(i)(2)(C). "Agent" means an individual "specifically authorized by the address to receive ...

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