United States District Court, E.D. Arkansas, Western Division
Procedure for Filing Objections:
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
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
Sherry Cooper, a former Arkansas Department of Correction
(“ADC”) inmate,  filed this complaint on May 18,
2017,  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).
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)
Insufficient Service of Process:
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.”).
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
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)
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.
plaintiff shows good cause for the failure to serve, the
court must extend the time for service for an appropriate