Steverson v. Walmart

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

VERNA STEVERSON, et al.,

Plaintiffs, Case No. 3:19-cv-00140

v. Chief Judge Waverly D. Crenshaw, Jr.

Magistrate Judge Alistair E. Newbern

WALMART, et al.,

Defendants.

To: The Honorable Waverly D. Crenshaw, Jr., Chief District Judge

REPORT AND RECOMMENDATION

Defendants GE Appliances (GE), Cincinnati Insurance Company (CIC), Walmart, CMI

Claims Management (CMI), Gree Manufacturing Company (Gree), and Ozark Electronics (Ozark)

have filed motions to dismiss pro se Plaintiffs Verna and Davis Steverson’s amended complaint in

this products liability action. (Doc. Nos. 57, 59, 60, 62, 66.) The Steversons have responded in

opposition (Doc. No. 69) and several of the defendants have filed replies (Doc. Nos. 70, 71, 72,

73). For the reasons that follow, the Magistrate Judge will recommend that the Court grant the

defendants’ motions and dismiss the amended complaint.

I. Factual and Procedural Background

A. Original Complaint, Removal to Federal Court, and First Motions to Dismiss

The Steversons filed this action in the Circuit Court for Dickson County, Tennessee, on

December 31, 2018, against Defendants Walmart, CMI, CIC, GE, Ozark, and Gree, alleging that

an air conditioning unit the Steversons purchased from Walmart had malfunctioned, flooding the

Steversons’ home and causing mold damage that affected their physical health.1 (Doc. No. 1-2.)

Defendants Ozark, CMI, and Walmart removed the action to this Court on February 12, 2019 (Doc.

No. 1), and all of the defendants filed motions to dismiss under Federal Rules of Civil

Procedure 12(b)(6) and 12(b)(5). (Doc. Nos. 6, 9, 14, 17, 20, 24). Ozark, CIC, CMI, and GE argued

that the complaint failed to allege any facts related to their conduct and therefore did not satisfy

federal pleading standards. (Doc. Nos. 7, 10, 18, 21.) Walmart argued that the allegation that it

sold the AC unit was insufficient to state a claim for relief under the Tennessee Products Liability

Act (“TPLA”), Tenn. Code. Ann. § 29-28-101 et seq. (Doc. No. 15.) Gree argued that it had not

been properly served and had only received notice of the action from the other defendants. (Doc.

No. 25.)

The Magistrate Judge recommended granting the motions to dismiss filed by Walmart,

CMI, CIC, Ozark, and Gree, and denying the motion to dismiss filed by GE. (Doc. No. 43.) GE

objected to the report and recommendation, arguing that the Magistrate Judge should not have

considered a document attached to the original complaint in determining whether the Steversons

had stated a plausible claim for relief against it. (Doc. No. 44.) In response, the Steversons moved

to file an amended complaint. (Doc. No. 45.) The District Judge approved and adopted the

Magistrate Judge’s recommendations to dismiss all claims against Walmart, CMI, CIC, Ozark,

and Gree, but set aside the recommendation to deny GE’s motion, denied the Steversons’ motion,

and dismissed the action without prejudice. (Doc. No. 48.)

1 The complaint states: “Plaintiff purchased an air conditioning unit from Walmart and it

was installed by the plaintiff’s own professionals. The air conditioning unit malfunctioned and

flooded the plaintiff’s home, causing mold and permanent damage to the plaintiff’s health.” (Doc.

No. 1-2, PageID# 10.)

On August 30, 2019, the Steversons filed a motion for reconsideration, again asking for

the opportunity to amend the complaint. (Doc. No. 50.) The Court ordered the Steversons to file a

proposed amended complaint within ten days and ordered the defendants to file a response within

five days of its filing. (Doc. No. 54.) The Steversons filed an amended complaint on September

20, 2019. (Doc. No. 55.) The defendants responded by filing motions to dismiss the amended

complaint. (Doc. Nos. 57, 59, 60, 62, 66.) The Court granted the Steversons’ motion for

reconsideration and referred the defendants’ motions to dismiss the amended complaint to the

Magistrate Judge. (Doc. No. 65.)

B. Amended Complaint and Second Motions to Dismiss

The Steversons’ amended complaint alleges that “[t]he GE A.C. unit has complet[e]ly

destroyed” their home, and “Wal[]mart, CMI, [CIC], GE Appliances, Ozark Electronics, and Gree

Manufacturing Company are ALL responsible for manufacturing and selling/mark[e]ting a

product w[h]ich is [d]efective and [d]angerou[]s[.]” (Doc. No. 55, PageID# 288 (emphasis in

original).) The amended complaint further specifies that the air conditioning unit was defective

and dangerous because the defendants “chose” not to put “drain holes in the back of the unit,”

which would have allowed “the AC unit [to] drain outside of the home[.]” (Id. at PageID# 292.)

The Steversons allege that this design caused “liquid (toxic chemic[]als) [to] pour[ ] out the front”

of the AC unit, “flooding the Steversons[’] home . . . .” (Id. at PageID# 293.) They further allege

that they are “dying because of [the] AC unit flooding [their] home with toxic and deadly

chemic[]als” and, “after spending [their] life savings staying out of [their] home for 14 months[,]

[they] had no choice but to come back home after spending over [$]100,000 . . . to refurbish or try

to remove the toxic chemic[]als . . . .” (Id. at PageID# 291.)

The defendants have filed motions to dismiss the amended complaint. (Doc. Nos. 57, 59,

60, 62, 66.) CIC, Walmart, CMI, GE, and Ozark, again argue, under Federal Rule of Civil

Procedure 12(b)(6), that the Steversons have failed to state claims against them upon which relief

may be granted because the amended complaint contains insufficient details to support a

reasonable inference that the defendants are liable under the TPLA. (Doc. Nos. 59, 60, 61, 67.)

These defendants argue that, although the amended complaint alleges some additional facts

regarding their roles, it contains only conclusory and unsupported statements grouping all the

defendants together and accusing them generally of wrongdoing. (Doc. Nos. 59, 60, 61, 67.) CIC

further argues, as it did in response to the original complaint, that Tennessee law prohibits finding

CIC liable as Ozark’s insurer unless Ozark is found liable first. (Doc. No. 59.) Gree argues that

the Steversons have again failed to effect proper service of process on it and that their claims

should be dismissed under Rule 12(b)(5). (Doc. No. 63.)

In response to the defendants’ motions, the Steversons reiterate allegations that the

defendants failed to compensate them for the damage caused by the faulty air conditioning unit.

(Doc. No. 69.) The Steversons emphasize that “each and every[ ]one [of the defendants] that has

been named in this lawsuit is playing a huge part in killing the Steverson family . . . .” (Id. at

PageID# 390.)

II. Legal Standards

A. Dismissal Under Federal Rule of Civil Procedure 12(b)(6)

In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court

must “construe the complaint in the light most favorable to the plaintiff, accept all well-pleaded

factual allegations in the complaint as true, and draw all reasonable inferences in favor of the

plaintiff.” Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016). Federal Rule of

Civil Procedure 8(a)(2) requires only that a complaint contain “a short and plain statement of the

claim[.]” Fed. R. Civ. P. 8(a)(2). However, “[t]he factual allegations in the complaint need to be

sufficient to give notice to the defendant as to what claims are alleged, and the plaintiff must plead

‘sufficient factual matter’ to render the legal claim plausible, i.e., more than merely possible.” Fritz

v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 677 (2009)).

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more

than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). A plaintiff must plead more than “‘labels

and conclusions[,]’” “‘a formulaic recitation of the elements of a cause of action[,]’” or “‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (third alteration in original) (quoting

Twombly, 550 U.S. at 555, 557). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id.

Because the Steversons appear pro se, the Court construes their filings “‘liberally’” and

holds the complaint “‘to less stringent standards than formal pleadings drafted by lawyers[.]’”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

There are limits to liberal construction, however, and “courts are not required to conjure up

unpleaded allegations or guess at the nature of an argument.” Brown v. Cracker Barrel Rest., 22

F. App’x 577, 578 (6th Cir. 2001) (citing Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

B. Dismissal Under Federal Rule of Civil Procedure 12(b)(5)

Rule 12(b)(5) authorizes courts to dismiss a complaint for insufficient service of process,

including for failure to comply with the service requirements of Federal Rule of Civil Procedure 4.

Fed. R. Civ. P. 12(b)(5); see 5B Charles Alan Wright et al., Federal Practice and Procedure

§ 1353 (3d ed. updated Apr. 2020) (“A Rule 12(b)(5) motion is the proper vehicle for challenging

the mode of delivery or the lack of delivery of the summons and complaint.” (footnote omitted)).

“The party on whose behalf service of process was made has the burden of establishing its

validity.” Chase v. White, No. 3:16-cv-01576, 2016 WL 7210155, at *4 (M.D. Tenn. Dec. 13,

2016). In deciding a motion to dismiss under Rule 12(b)(5), the court may refer to record evidence

to determine the sufficiency of service. Id.

III. Analysis

Under the TPLA, “[a] manufacturer or seller of a product shall not be liable for any injury

to a person or property caused by the product unless the product is determined to be in a defective

condition or unreasonably dangerous at the time it left the control of the manufacturer or seller.”

Tenn. Code Ann. § 29-28-105(a). The TPLA defines a “[m]anufacturer” as “the designer,

fabricator, producer, compounder, processor or assembler of any product or its component

parts[.]”Id. § 29-28-102(4). It defines a “[s]eller” as “any individual or entity engaged in the

business of selling a product,” including “a retailer, wholesaler, or distributor,” “whether such sale

is for resale, or for use or consumption.” Id. § 29-28-102(7). Sellers that did not also manufacture

a product (non-manufacturer sellers) may only be held liable under the TPLA if one of five

exceptions applies. See Greer v. Motion Water Sports, Inc., No. 3:17-cv-01013, 2018 WL

1907449, at *2 (M.D. Tenn. Apr. 23, 2018) (“The TPLA ‘shields non-manufacturer sellers of

products from liability’ unless one of the five exceptions apply.” (footnote omitted)). Specifically,

the TPLA provides that:

[n]o product liability action, as defined in § 29-28-102, shall be commenced or

maintained against any seller, other than the manufacturer, unless:

(1) The seller exercised substantial control over that aspect of the design, testing,

manufacture, packaging or labeling of the product that caused the alleged harm for

which recovery of damages is sought;

(2) Altered or modified the product, and the alteration or modification was a

substantial factor in causing the harm for which recovery of damages is sought;

(3) The seller gave an express warranty as defined by title 47, chapter 2;

(4) The manufacturer or distributor of the product or part in question is not subject

to service of process in this state and the long-arm statutes of Tennessee do not

serve as the basis for obtaining service of process; or

(5) The manufacturer has been judicially declared insolvent.

Tenn. Code Ann. § 29-28-106.

To state a claim for relief under the TPLA against the defendants, the Steversons must

plausibly allege that each defendant is either a manufacturer or non-manufacturer seller as defined

by the TPLA and that “(1) the product was defective and/or unreasonably dangerous, (2) the defect

existed at the time the product left the [defendant]’s control, and (3) the [Steversons’] injury was

proximately caused by the defective product.” Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483

(6th Cir. 2008) (citation omitted).

A. Walmart’s Motion to Dismiss

Walmart argues that the Steversons’ claims should be dismissed with prejudice under

Rule 12(b)(6) because the Steversons have again failed to plead sufficient facts to allow the Court

to draw a reasonable inference that Walmart can be found liable under the TPLA. (Doc. No. 60.)

Even liberally construing all of the Steversons pro se filings in this action, the Court finds that the

Steversons have failed to state a plausible claim for relief against Walmart. The allegations in the

amended complaint that all of the defendants are responsible for designing, manufacturing, selling,

and marketing the AC unit are conclusory. (Doc. No. 55.) They are therefore “not entitled to be

assumed true.” Iqbal, 556 U.S. at 681 (citing Twombly, 550 U.S. at 554–55). The allegations about

Walmart in the Steversons’ motion for reconsideration primarily concern Walmart’s refusal to

replace the unit or reimburse the Steversons.2 (Doc. No. 50.) The Steversons state that Walmart

2 Because the Steversons could move to amend their pleading to allege these additional facts,

the Court may consider them in analyzing the defendants’ motions to dismiss. See Richardson v.

United States, 193 F.3d 545, 548 (D.C. Cir. 1999) (holding that the district court should have “read

refused their request to replace or refund the AC unit even though they made their request within

“the advertised return policy period.” (Id. at PageID# 268.) The Steversons also allege that

Walmart “deceptively told [them]” not to file a claim about the damage from the AC unit with

their “home owner’s ins[urance] co[mpany] because [the insurance company] would cancel th[ei]r

policy . . . .” (Id.) Finally, the Steversons allege that, after the AC unit failed, Walmart, along with

CMI and Ozark, “order[ed]” CIC to hire an “engineering/design [and] testing corp[oration]” to

“pick[ ] up [the AC unit] from the Steversons’ residence for diagnostic testing which has never

been p[er]form[ed].” (Id. at PageID# 265.) These allegations, taken as true and construed liberally,

do not support a reasonable inference that Walmart manufactured the unit; that Walmart exercised

substantial control over the unit’s design, testing, manufacture, packaging or labeling before it

malfunctioned; that Walmart altered or modified the unit before it malfunctioned; that Walmart

gave an express warranty; or that the that the manufacturer has been declared insolvent or is

otherwise not subject to this Court’s jurisdiction. The Steversons have therefore failed to state a

plausible claim for relief against Walmart under the TPLA, and Walmart’s motion to dismiss

should be granted.

B. GE’s Motion to Dismiss

GE similarly argues that the Steversons’ claims against it should be dismissed with

prejudice under Rule 12(b)(6) because the Steversons have failed to plead sufficient facts to allow

the Court to draw a reasonable inference that GE can be found liable as a manufacturer or non-

manufacturer seller under the TPLA. (Doc. No. 61.) Construing all of the Steversons pro se filings

all of [the pro se plaintiff’s] filings together before dismissing [the] case”); Harding v. Davidson

Cnty. Sheriff’s Office, No. 3:13-cv-0449, 2013 WL 5774937, at *3 (M.D. Tenn. Oct. 25, 2013)

(rejecting argument that “factual allegations made in [a pro se] plaintiff’s response in opposition

to [a] motion to dismiss” should not be considered in ruling on the motion to dismiss).

in this action liberally, the Court finds that the Steversons have failed to state a plausible claim for

relief against GE under the TPLA. Although the amended complaint repeatedly refers to the air

conditioner as a GE AC unit, the Steversons have alleged that Gree, not GE, manufactured the

unit.3 (Doc. No. 55, PageID# 296 (“Gree of China will produce and manufact[u]r[e] . . . any

product that they can sell for a profit!”); Doc. No. 69, PageID# 391 (stating that the AC unit was

“[b]uilt by Gree Co.”); id. at PageID# 392 (“Gree . . . has violated the T.P.L.A. by manufact[u]ring

an air conditioning unit that is [d]efe[c]tive and or unreasonably [d]anger[]ous.”).) 4 The

Steversons’ conclusory allegations that all of the defendants, including GE, were responsible for

designing and manufacturing the unit are insufficient to support a reasonable inference that GE

qualifies as a manufacturer as defined by the TPLA. See Iqbal, 556 U.S. at 681 (citing Twombly,

550 U.S. at 554–55). The Steversons allege in their response in opposition to the motions to dismiss

that “GE Appliances [d]esigned the AC unit that . . . was and [i]s [d]efective and [d]angerous . . . .”

3 Tennessee courts have adopted “[t]he apparent manufacturer doctrine[,]” which “states that

one who puts out as his own product a chattel by another is subject to the same liability as though

he were the manufacturer.” Travelers Indem. Co. v. Indus. Paper & Packaging Corp., No. 3:02–

CV–491, 2006 WL 3864857, at *8 (E.D. Tenn. Dec. 18, 2006) (citing Restatement (Second) of

Torts § 400 (Am. Law Inst. 1964)); see also Bogart v. STP Corp., No. 82C-578, 1985 WL 301940,

at *3 (Tenn. Cir. Ct. Oct. 2, 1985) (“A purchaser of an article ought to be able to rely upon the

labeling of a product to identify the manufacturer; and, in the absence of the name of the real

manufacturer, the marketer named on the product ought to be conclusively presumed to be the

manufacturer.”). In this action, the Steversons have identified Gree as the actual manufacturer of

the AC unit but, as explained below, have failed to effect service of process on Gree. (Doc. Nos. 55,

69.) The Steversons have not argued that GE may be held liable under the apparent manufacturer

doctrine in these circumstances, and the Court need not make that argument on the Steversons’

behalf. See Brown, 22 F. App’x at 578.

4 Because the Steversons could move to amend their pleading to allege the additional facts

found in their response in opposition to the motions to dismiss, the Court may consider these facts

in analyzing the defendants’ motions. See Richardson, 193 F.3d at 548 (holding that the district

court should have “read all of [the pro se plaintiff’s] filings together before dismissing [the] case”);

Harding, 2013 WL 5774937, at *3 (rejecting argument that “factual allegations made in [a pro se]

plaintiff’s response in opposition to [a] motion to dismiss” should not be considered in ruling on

the motion to dismiss).

(Doc. No. 69, PageID# 397.) But the Steversons have not alleged any facts to support this

allegation, and “‘naked assertion[s]’ devoid of ‘further factual enhancement’” are not enough to

satisfy federal pleading standards. Iqbal, 556 U.S. at 678 (alteration in original) (quoting Twombly,

550 U.S. at 557). The Court further finds that the Steversons’ have not plausibly alleged that GE

is liable as a non-manufacturer seller under the TPLA because their allegations do not support a

reasonable inference that GE exercised substantial control over the unit’s design, testing,

manufacture, packaging or labeling before it malfunctioned; that GE altered or modified the unit

before it malfunctioned; that GE gave an express warranty; or that the that Gree, the manufacturer,

has been declared insolvent or is otherwise not subject to this Court’s jurisdiction. Accordingly,

GE’s motion to dismiss should be granted.

C. Motions to Dismiss Claims Against Ozark, CIC, and CMI

Ozark, CIC, and CMI also argue that the Steversons’ amended complaint is subject to

dismissal under Rule 12(b)(6) because it contains insufficient facts to support a reasonable

inference that they are liable for any alleged wrongdoing under the TPLA. (Doc. Nos. 59, 60, 67.)

CIC further argues that the Steversons cannot state a claim against it as Ozark’s insurer because

Tennessee law does not permit direct actions against an insurer by a person not covered by the

relevant insurance policy unless there has been a finding of liability on the part of the insured.

(Doc. No. 59.)

The Court has already found that the Steversons’ conclusory allegations that all of the

defendants are responsible for designing, manufacturing, selling, and marketing the AC unit are

not entitled to an assumption of truth. See Iqbal, 556 U.S. at 681 (citing Twombly, 550 U.S. at

554–55). The Steversons’ remaining allegations against Ozark, CIC, and CMI relate to conduct

that took place after the AC unit malfunctioned. For example, the amended complaint alleges that,

“when the . . . AC unit failed . . .[,]” it was “sent to Ozark Electronics to be rebuilt . . . .” (Doc.

No. 55, PageID# 293.) The Steversons’ motion for reconsideration alleges that CMI and Ozark,

along with Walmart, “order[ed]” CIC to hire an “engineering/design [and] testing corp[oration]”

to “pick[ ] up [the AC unit] from the Steversons’ residence for diagnostic testing which has never

been p[er]form[ed].” (Doc. No. 50, PageID# 265.) Their response in opposition to the motions to

dismiss alleges that “the Steversons were promised that the [i]nspection and [d]iagnostic testing

would be performed right away, [i]mmediately after picking up the GE AC unit[,]” but

approximately “2 years later this [d]iagnostic [i]nspection has never been p[er]formed[.]”(Doc.

No. 69, PageID# 380.) These allegations, even taken as true and construed liberally, do not support

a reasonable inference that Ozark, CIC, or CMI manufactured the unit; that Ozark, CIC, or CMI

exercised substantial control over the unit’s design, testing, manufacture, packaging or labeling

before it malfunctioned; that Ozark, CIC, or CMI altered or modified the unit before it

malfunctioned; that Ozark, CIC, or CMI gave an express warranty; or that the that Gree, the

manufacturer, has been declared insolvent or is otherwise not subject to this Court’s jurisdiction.

Moreover, CIC is correct that “Tennessee is not a ‘direct action’ state where a plaintiff can sue the

liability insurance carrier of the defendant who allegedly caused the harm” without first

establishing that the insured defendant “has become ‘legally obligated’ to pay the damages

resulting from” the plaintiff’s claimed injury. Ferguson v. Nationwide Prop. & Cas. Ins. Co., 218

S.W.3d 42, 52 (Tenn. Ct. App. 2006) (quoting Seymour v Sierra, 98 S.W.3d 164, 165 (Tenn. Ct.

App. 2002)).

The Steversons have therefore failed to state plausible claims for relief under the TPLA

against Ozark, CIC, and CMI. These defendants’ motions to dismiss should be granted.

D. Gree’s Motion to Dismiss

Gree again argues that dismissal is appropriate under Rule 12(b)(5) because the Steversons

failed to serve it in compliance with Federal Rule of Civil Procedure 4(h) or Tennessee Rule of

Civil Procedure 4.05. (Doc. No. 63.) Gree argues that the state-court summons issued in this action

prior to removal (Doc. No. 24-1) names the wrong legal entity and is addressed not to Gree’s agent

for service of process, but to a warehouse in New York that does not have any agents authorized

to accept service on Gree’s behalf. (Doc. No. 63.) Moreover, Gree states that it never actually

received a copy of the state-court summons at the New York address. (Id.) In their response in

opposition to the motions to dismiss, the Steversons “appolagize [sic] if [they] accidently called

[Gree] by a mis[s]pelling or mispronouncing of [Gree’s] name.” (Doc. No. 69, PageID# 392.) The

Steversons do not argue that they served Gree in compliance with federal or state rules.

“[T]he requirement of proper service of process ‘is not some mindless technicality,’”

Friedman v. Est. of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991) (quoting Del Raine v. Carlson,

826 F.2d 698, 704 (7th Cir. 1987)), nor is it “meant to be a game or obstacle course for plaintiffs[,]”

Ace Am. Ins. Co. v. Meadowlands Dev. Ltd. P’ship, 140 F. Supp. 3d 450, 455 (E.D. Pa. 2015).

Rather, it goes to the very heart of a court’s ability to hear a case. “[W]ithout proper service of

process, consent, waiver, or forfeiture, a court may not exercise personal jurisdiction over a named

defendant.” King v. Taylor, 694 F.3d 650, 655 (6th Cir. 2012); see also Mann v. Castiel, 681 F.3d

368, 372 (D.C. Cir. 2012) (explaining that “[s]ervice is . . . not only a means of notifying a

defendant of the commencement of an action against him,’ but ‘a ritual that marks the court’s

assertion of jurisdiction over the lawsuit” (citation omitted)). Where personal jurisdiction is not

properly established, a court cannot exercise its authority consistent with due process of law. See

Friedman, 929 F.2d at 1156–57.

Rule 4(c) provides that “[a] summons must be served with a copy of the complaint” and

the plaintiffs are “responsible for having the summons and complaint served . . . .” Fed. R. Civ.

P. 4(c). Rule 4(l) provides that, “[u]nless service is waived, proof of service must be made to the

court” and, “[e]xcept for service by a United States marshal or deputy marshal, proof must be by

the server’s affidavit.” Fed. R. Civ. P. 4(c)(l)(1). The Steversons have not provided any proof of

service on Gree, and there is no indication in the record that the Steversons served Gree at all,

much less in compliance with Federal Rule of Civil Procedure 4(h) or any relevant state rule.5 The

Steversons have therefore failed to carry their burden to establish valid service of process on Gree,

and Gree’s motion to dismiss under Rule 12(b)(5) should be granted. See Chase, 2016 WL

7210155, at *4.

IV. Recommendation

For these reasons, the Magistrate Judge RECOMMENDS that the defendants’ motions to

dismiss the amended complaint (Doc. Nos. 57, 59, 60, 62, 66) be GRANTED and that this action

be DISMISSED.

Any party has fourteen days after being served with this Report and Recommendation to

file specific written objections. Failure to file specific objections within fourteen days of receipt

of this report and recommendation can constitute a waiver of appeal of the matters decided.

Thomas v. Arn, 474 U.S. 140, 155 (1985); Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004).

5 Rule 4(h) provides two acceptable methods for serving corporate defendants like Gree.

First, service on a domestic or foreign corporation in a United States judicial district may be

accomplished

by delivering a copy of the summons and of the complaint to an officer, a managing

or general agent, or any other agent authorized by appointment or by law to receive

service of process and—if the agent is one authorized by statute and the statute so

requires—by also mailing a copy of each to the defendant.

Fed. R. Civ. P. 4(h)(1)(B). Second, Rule 4(h) allows for service of a corporation “in the manner

prescribed by Rule 4(e)(1) for serving an individual . . . .” Fed. R. Civ. P. 4(h)(1)(A). That method

of service involves “following state law for serving a summons . . . in the state where the district

court is located or where service is made . . . .” Fed. R. Civ. P. 4(e)(1).

A party who opposes any objections that are filed may file a response within fourteen days after

being served with the objections. Fed. R. Civ. P. 72(b)(2).

Entered this 13th day of August, 2020.

ALISTAIR-B. NEWBERN

United States Magistrate Judge

14