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Brittany O. v. New Boston Enterprises, Inc.

United States District Court, W.D. Arkansas, Fayetteville Division

July 15, 2016

BRITTANY O, as Parent and Next Friend of L PLAINTIFF
NEW BOSTON ENTERPRISES, INC.; TEXARKANA BEHAVIORAL ASSOCIATES, L.C., d/b/a Vista Health TDT, d/b/a Vantage Point of Northwest Arkansas; WINSTON



         Currently before the Court are the defendants' Motions to Dismiss and Briefs in Support (Docs. 28-41), the plaintiff's Response in Opposition (Doc. 42) and Brief in Support (Doc. 43), and the defendants' Reply (Doc. 44). For the reasons given below, the defendants' Motions at Docs. 28, 30, 32, 38, and 40 are GRANTED, the defendants' Motion at Doc. 34 is MOOT, and the defendants' Motion at Doc. 36 is GRANTED IN PART AND DENIED IN PART.

         I. BACKGROUND

         Plaintiff Brittany O brings this action as Parent and Next Friend ("Parent") of L ("Student"), her son. This case arises out of the same facts and circumstances that gave rise to another lawsuit in this Court, Brittany O, as Parent and Next Friend of L v. Bentonville School District et al., Case No. 5:15-cv-5020 ("Brittany I"), which is currently on appeal to the Eighth Circuit from this Court's award of summary judgment to the defendants in that case. Here, as in Brittany I, the alleged facts are that Student is a child who is disabled as defined in 20 U.S.C. § 1401(3), who was enrolled at Thomas Jefferson Elementary School in the Bentonville School District during the 2012-13 school year, and whose diagnoses include attention deficit hyperactivity disorder, disruptive behavior disorder, mood disorder, oppositional defiant disorder, and sensory disorder. Parent alleges that after the Bentonville School District identified Student as disabled, they transferred him to a therapeutic day treatment ("TDT") center that was privately owned and operated by the defendants New Boston Enterprises, Inc. ("New Boston) and Texarkana Behavioral Associates, L.C. ("TBA"), where Student was subjected to physical abuse and provided with an inadequate and unequal education relative to his non-disabled peers in the Bentonville School District.

         Parent initiated Brittany I by filing a complaint in the United States District Court for the Eastern District of Arkansas on March 5, 2014, and then filing an amended complaint in that case on July 16 of the same year. Parent's amended complaint asserted claims against eleven separate defendants under 42 U.S.C. § 1983; the Individuals with Disabilities Education Improvement Act of 2004 ("IDEA"), 20 U.S.C. § 1400 et seq.; the No Child Left Behind Act of 2001 ("NCLBA"), 20 U.S.C. § 6301 etseq.; the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.; the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq.; and state law. The defendants in Brittany I could be analytically grouped into three separate classes. One class consisted of the Bentonville School District and related defendants. A second class consisted of defendants associated with the State of Arkansas. And the third class consisted of defendants associated with the above-referenced TDT center-specifically New Boston, TBA, Allen Morrison, and Veronica Odum.

         On January 22, 2015, Judge Leon Holmes in the Eastern District of Arkansas entered an order in Brittany I that, inter alia, dismissed Parent's claims against New Boston and TBA without prejudice for failure to timely serve them with the complaint, and transferred the case to this Court. On March 12, 2015, this Court entered an order dismissing Parent's claims in Brittany I against Mr. Morrison without prejudice for failure to timely serve him with the complaint. On November 2, 2015, Parent filed the Complaint (Doc. 1) initiating the instant lawsuit ("Brittany ir), and a little over two weeks later she moved in Brittany I for the Court to consolidate Brittany I and Brittany II-a request which this Court denied a little less than one week afterwards. Then, on December 2, 2015, Parent filed a motion in Brittany I, asking this Court to dismiss Ms. Odum from that lawsuit with prejudice; on December 22, this Court granted that motion, and indeed dismissed Ms. Odum from Brittany I with prejudice. On March 15, 2016, this Court awarded summary judgment to the remaining defendants in Brittany I. As noted above, an appeal is currently pending before the Eighth Circuit from that judgment.

         The defendants here in Brittany II are New Boston, TBA, Mr. Allen, and Ms. Odum-all of whom were defendants in Brittany I-as well as Stephanie Cross, Shannon Nolan, and Charles "Chuck" Shields. The latter three defendants are alleged to have been employees of TBA when the complained-of events occurred, but were not named as defendants in Brittany I. Parent's federal causes of action in Brittany II are alleged to arise under the same laws as those referenced in her Brittany I amended complaint, except that Parent does not purport to bring any claims under the NCLBA in Brittany II. On April 18, 2016, the defendants filed seven different motions to dismiss various claims from Parent's Complaint in Brittany II, predicated on arguments that Parent failed to serve a couple of the defendants with a copy of the Complaint, that claims against a couple of other defendants are barred by res judicata, and that the Complaint fails to plead sufficient facts to state a claim.[1] These motions have all been fully briefed and are now ripe for decision.


         A. Motion to Dismiss for Insufficient Service of Process

         New Boston and Ms. Cross ask this Court to dismiss Parent's claims against them because Parent did not serve them with a copy of the Complaint within 120 days of its filing in this case.[2] Parent has indicated she "has no objection to dismissing Cross, " (Doc. 43, p. 19), so the Court will GRANT the Motion as to Ms. Cross, who will be DISMISSED WITHOUT PREJUDICE.

         Since New Boston's objection goes not to the form of process or content of the summons but rather to the lack of service itself, its Motion is properly brought under Rule 12(b)(5) rather than Rule 12(b)(4). 5B Wright & Miller, Federal Practice and Procedure: Civil 3d § 1353 (3d ed. 2004). "In a Rule 12(b)(5) motion, the party making the service has the burden of demonstrating validity when an objection to the service is made." Roberts v. USCC Payroll Corp., 2009 WL 88563, at *1 (N.D. Iowa Jan 13, 2009) (internal quotation marks omitted). If a defendant is not served within the time provided by the Federal Rules of Civil Procedure, then the Court "must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Fed.R.Civ.P. 4(m).

         Parent and New Boston agree that Parent never served New Boston with a copy of the Complaint. See Doc. 38, p. 1; Doc. 43, p. 19. Parent argues that she has made reasonable, good-faith attempts at serving New Boston's registered agent, who she identifies as Susan Naples, and that therefore New Boston should not be dismissed. In support of this argument she submits a Certificate of Due Diligence (Doc. 42-1), indicating that within a one-week span in mid-December 2015, a process server from Texas made seven separate attempts to effect in-person service at an address in Texarkana, Texas. On each attempt, the process server found a locked gate and presumably received no response to any attempts at gaining entry. On three such occasions he left a card, each of which was gone upon his return. See Id. The process server also indicates that he "located phone number... on internet" which was "not in service." Id.

         In addition to personal delivery to a registered agent, see Fed. R. Civ. P. 4(h)(1)(B), Rule 4 permits a corporation to be served by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made, " Fed.R.Civ.P. 4(e)(1), (h)(1)(A), which in this case would be the states of Arkansas and Texas, respectively. Both Arkansas and Texas allow service upon a Texas corporation's registered agent to be performed through certified mail. Ark. R. Civ. P. 4(d)(8)(A)(i), (e)(3); see Tex. R. Civ. P. 106(a)(2); Tex. Bus. Orgs. Code Ann. § 5.201. Furthermore, under Texas law, "[t]he secretary of state is an agent of an entity for purposes of services of process, notice, or demand on the entity if... the registered agent of the entity cannot with reasonable diligence be found at the registered office of the entity, " Tex. Bus. Orgs. Code Ann. § 5.251, and may be served by delivering to the Secretary "duplicate copies of the process, notice, or demand" and paying any applicable fees, id. at § 5.252. Parent has not indicated whether she made any attempt to serve New Boston through certified mail or through service upon the Texas Secretary of State, or if not, then why she was unable to do so. Therefore, Parent has not shown good cause for her failure to serve New Boston. New Boston's Motion is GRANTED, and Parent's claims against New Boston are DISMISSED WITHOUT PREJUDICE under Rule 4(m).[3]

         B. Motion to Dismiss ...

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