United States District Court, N.D. Mississippi, Aberdeen Division
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.
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.  ¶ 7. She now sues several
entities and individuals who owned, managed, and worked at
the hotel for civil rights violations and state law tort
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. That court transferred venue to this Court
on February 2, 2018.
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." 
The return receipts addressed to Amanda Daniels and Bruce
Patel were signed by "DSM."  The return receipt
addressed to Comfort-Inn is signed by "N.
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.
Standard under Rule 12(b)(5) for Insufficient Service of
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).
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.
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).
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).
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.
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 ...