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.