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Cooper v. Arkansas Department of Correction

United States District Court, E.D. Arkansas, Western Division

January 19, 2018

SHERRY COOPER PLAINTIFF
v.
ARKANSAS DEPARTMENT OF CORRECTION, et al. DEFENDANTS

          RECOMMENDED DISPOSITION

         I. Procedure for Filing Objections:

         This Recommended Disposition (“Recommendation”) has been sent to Judge James M. Moody Jr.. Any party to this suit may file written objections with the Clerk of Court within 14 days of filing of the Recommendation. Objections must be specific and must include the factual or legal basis for the objection.

         By not objecting, any right to appeal questions of fact may be jeopardized. And, if no objections are filed, Judge Moody can adopt this Recommendation without independently reviewing the record.

         II. Background:

         Plaintiff Sherry Cooper, a former Arkansas Department of Correction (“ADC”) inmate, [1] filed this complaint on May 18, 2017, [2] alleging that Defendants violated her constitutional rights while she was incarcerated at the ADC's McPherson unit. (Docket entry #1) She named the ADC, John Dean, and Lisa Cash as defendants. (Id.) All of the Defendants have moved to dismiss based on insufficient service of process. (#3) See Fed.R.Civ.P. 12(b)(5). Defendants have also moved to dismiss for failure to state a claim. (Id.) See Fed.R.Civ.P. 12(b)(6).

         Ms. Cooper has responded to the motions, and Defendants have replied to the response. (#10, #11) Judge Moody referred the motions to this Court for findings and recommendations. (#12)

         III. Insufficient Service of Process:

         A. Standard

         Defendants have moved to dismiss based on insufficient service of process. See Fed.R.Civ.P. 12(b)(5). Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied. Omni Captiol Int'l, v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987); see also Adams v. AlliedSignal Gen. Aviation Avionics, 74 F.3d 882, 885-86 (8th Cir. 1996) (district court lacks jurisdiction over party improperly served whether or not it had actual notice of the lawsuit) (citing Printed Media Servs., Inc. v. Solna Web, Inc., 11 F.3d 838, 843 (8th Cir.1993)). A party challenging the method or lack of delivery of a summons and complaint may move to dismiss the case. See Fed.R.Civ.P. 12(b)(5). Once service of process is contested, plaintiffs have the burden of proving proper service of process. Richardson v. Volkswagenwerk, A.G., 552 F.Supp. 73, 79 (1982); see also Roberts v. USCC Payroll Corp., 2009 WL 88563, at *1 (N.D. Iowa Jan 13, 2009) (“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.”).

         Under the Federal Rules of Civil Procedure, Ms. Cooper could serve the defendants by following Arkansas law for serving a summons. Fed.R.Civ.P. 4(e)(1) and 4(j)(2). Arkansas law provides that a plaintiff may serve a summons and complaint by:

any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee. The addressee must be a natural person specified by name, and the agent of the addressee must be authorized in accordance with U.S. Postal Service regulations. However, service on the registered agent of a corporation or other organization may be made by certified mail with a return receipt requested.

Ark. R. Civ. P. 4(d)(8)(A)(i)

         Even though the Federal Rules allow for service to be made in a manner provided under state law, the Federal Rules dictate the time by which service must be completed. See e.g. Girlinghouse v. Capella Healthcare, Inc., No. 15-6008, 2015 WL 13358295, at *4 (W.D. Ark. Aug. 27, 2015) (Arkansas substantive law controls commencement of lawsuit, but the timeliness of service is controlled by Rule 4(m) of the Federal Rules) (citing Tillman v. Georgia, 466 F.Supp.2d 1311, 1322-23 (S.D. Ga. 2006)). Under the Federal Rules, Ms. Cooper was required to serve Defendants with a summons and a copy of the complaint within 90 days after the complaint was filed. Fed.R.Civ.P. 4(m).

         If the plaintiff shows good cause for the failure to serve, the court must extend the time for service for an appropriate period. ...


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