Opinion

Kolb v. Brown

Court
District Court, E.D. Missouri
Filed
Apr 11, 2022
Cited by
0 cases
Authority
More cited than 24.2%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

STEVEN WAYNE KOLB )

)

Plaintiff, )

)

v. ) No. 4:21-CV-1393 PLC

)

ELLIS BROWN, ET AL., )

)

Defendants. )

)

MEMORANDU M AND ORDER

This matter is before the Court on review of the record. On February 25, 2022, Plaintiff

Steven Kolb filed a motion for entry of default against Defendant Ellis Brown by the Clerk of

Court pursuant to Fed. R. Civ. P. 55(a). [ECF No. 12] The Clerk of Court entered default on

March 1, 2022. [ECF No. 13]

Upon review of the proof of service filed by Plaintiff as to Defendant Brown, an inmate

at Yazoo Federal Prison, the Court finds that the proof of service is insufficient. Federal Rule of

Civil Procedure 4(e) provides the following methods by which a plaintiff may effectuate service

of process in federal court: (1) as allowed by state law in the state where the district court is

located;1

1 Missouri Supreme Court Rule 54.13 provides:

Personal service within the state shall be made … Upon an individual, including

an infant or incompetent person not having a legally appointed guardian, by

delivering a copy of the summons and petition personally to the individual or by

leaving a copy of the summons and petition at the individual's dwelling house

or usual place of abode with some person at least 18 years of age residing therein,

or by delivering a copy of the summons and petition to an agent authorized by

appointment or required by law to receive service of process.

(2) by “delivering a copy of the summons and of the complaint to the individual personally”; (3)

by “leaving a copy of each at the individual’s dwelling or usual place of abode with someone of

suitable age and discretion who resides there”; or (4) by “delivering a copy of each to an agent

authorized by appointment or by law to receive service of process.” Fed. R. Civ. P. 4(e). See

also Cheeks v. Belmar, 331 F.R.D. 499, 502-03 (E.D. Mo. 2019). If a defendant is not properly

served, a federal court lacks jurisdiction over that defendant. Adams v. AlliedSignal General

Aviation Avionics, 74 F.3d 882, 885 (8th Cir. 1996) (citing Printed Media Services, Inc. v. Solna

Web, Inc., 11 F.3d 838, 843 (8th Cir. 1993)).

Here, the proof of service states: “I served the summons on CSO Brown, who is

designated by law to accept service of process on behalf of Federal Correction Institute – USP

Yazoo City” on 1-24-22[.]” [ECF No. 11] Under the heading, “Additional information regarding

attempted service, etc.,” the process server wrote: “A copy of the summons will be mailed to

Ellis Brown on 1/25/22.” [Id.] Defendant Brown did not file an answer or other response and

the deadline for doing so is long past.

Missouri Supreme Court Rule 54.13(b)(1). Missouri Supreme Court Rule 54.16 provides, in

relevant part, that a defendant may be served by

mailing a copy of the summons and petition by first class mail, postage prepaid,

to the person to be served, together with two copies of a notice and

acknowledgment … and a return envelope, postage prepaid addressed to the

sender. If no acknowledgment of service under this Rule 54.16 is completed

and returned to the sender, service of the summons and petition shall be made

as otherwise provided by statute or rule….

Missouri Supreme Court Rule 54.16. Missouri courts require strict application of the service-of-

process rules to acquire personal jurisdiction over a defendant. Williams v. Zellers, 611 S.W.3d

357, 364 (Mo. Ct. App. 2020). “Service of process under Rule 54.16 by first class mail is only

satisfied when the acknowledgment of service is completed and returned to the sender[.]” Carter

v. Schoonover, 4:21-CV-688 RK, 2022 WL 993088, at *2 (W.D. Mo. Mar. 24, 2022).

The proof of service reflects that Defendant Brown was neither served personally nor

served at his dwelling or usual place of abode with someone who resides there. To the extent that

the proof of service purports to show service on an authorized agent, the process server stated that

CSO Brown was “designated by law to accept service of process on behalf” of the institution

where Defendant Brown is incarcerated, not on behalf of Defendant Brown. Plaintiff offers no

evidence demonstrating that CSO Brown was legally authorized to accept service on Defendant

Brown’s behalf.* Without further evidence, the proof of service filed by Plaintiff is insufficient

to establish proof of service on Defendant Brown.

Accordingly,

IT IS HEREBY ORDERED that the Clerk’s Entry of Default [ECF No. 13] is

WITHDRAWN for insufficient proof of service.

IT IS FURTHER ORDERED that Plaintiff shall, no later than April 25, 2022, either

effect proper service on Defendant Brown and file proof of service or show cause in writing why

this action should not be dismissed without prejudice as to Defendant Brown for lack of timely

service pursuant to Federal Rule of Civil Procedure 4(m).

Piriiin Log

PATRICIA L. COHEN

UNITED STATES MAGISTRATE

JUDGE

Dated this 11th day of April, 2022

The Court notes that, while Missouri law permits service by mail, service is not effective unless

the person served returns an acknowledgement of receipt of summons. A review of the record

reveals no acknowledgement signed and returned by Defendant Brown.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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