# Emiabata v. Farmers Insurance Corporation

> District Court, M.D. Tennessee · February 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10438471

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** February 27, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10438471

## How later opinions describe it (automated extraction)

- declining to review an issue that the district judge did not consider because it was not presented to the magistrate judge

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

SYLVIA EMIABATA, )
)
Plaintiff, )
)
v. ) Case No. 3:21-cv-00477
) Judge Aleta A. Trauger
FARMERS INSURANCE CORPORATION )
and FARMERS TEXAS COUNTY )
MUTUAL INSURANCE COMPANY, )
)
Defendants. )

MEMORANDUM and ORDER
Before the court are pro se plaintiff Sylvia Emiabata’s Objections (Doc. No. 45) to the
Magistrate Judge’s Report and Recommendation (“R&R”) (Doc. No. 44), which recommends that
the defendants’ Motion to Dismiss (Doc. No. 28) be granted and that the plaintiff’s two motions
(Doc. Nos. 40, 41) to correct or supplement her Response in opposition to the Motion to Dismiss
be denied as moot. The defendants have filed an Opposition to the Objections. (Doc. No. 46.)
For the reasons set forth herein, the Objections will be overruled, and the R&R will be
accepted in its entirety. The defendants’ Motion to Dismiss will be granted, and this case will be
dismissed without prejudice.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Complaint, filed on June 18, 2021, asserts claims against defendants Farmers
Insurance Company (“FIC”) and Farmers Texas County Mutual Insurance Company (“Farmers
Texas”) based on their having allegedly marketed and sold a defective insurance policy (“Policy”)
to the plaintiff when she was a resident of Texas. (Doc. No. 1, at 2, 3.) The claims arise from the
defendants’ denial of coverage under the Policy after the plaintiff was involved in a vehicular
accident in Dickson County, Tennessee in February 2016. (Id. at 2.) The plaintiff invokes the
court’s diversity jurisdiction, and she alleges that she is a citizen of Connecticut, that she purchased
the Policy in Texas, that FIC’s principal place of business and place of incorporation is California,
and that Farmers Texas’s principal place of business and place of incorporation is Texas.1 (Id. at

3–4.) The plaintiff alleges that both defendants “insure products throughout the United States and
around the world” (id. at 5) and that they “regularly conduct business in Tennessee” (id. at 6), but
she does not otherwise allege that either has any specific contacts, a registered agent for service of
process, or any employees or agents in Tennessee.
The defendants have moved to dismiss Emiabata’s claims against them under Rule 12 of
the Federal Rules of Civil Procedure, for insufficient service of process, lack of personal
jurisdiction, and improper venue. (Doc. Nos. 28, 28-1 through 28-4.) The plaintiff filed a Response
and supporting Memorandum opposing the Motion to Dismiss. (Doc. Nos. 33, 34.) The defendants
filed a Reply. (Doc. No. 36.) The plaintiff then filed her two motions to correct her Response,
which the defendants opposed, and the plaintiff filed a Reply. (Doc. Nos. 49–43.)

As relevant here, the Magistrate Judge issued an Order to Show Cause on February 22,
2022, directing the plaintiff to show cause why the case should not be dismissed under Rule 4(m)
for failure to effect service of process. (Doc. No. 16.) The plaintiff responded, and the Magistrate
Judge issued an Order on March 18, 2022, finding that the plaintiff had shown cause that the action
should not be dismissed at that time, as she had made efforts to effect service of process. (Doc.
No. 20.) At the same time, the Magistrate Judge found that the plaintiff still had not effected service

1 Despite alleging that Farmers Texas is incorporated in Texas and has its principal place
of business in Austin, Texas, the plaintiff has attempted to serve Farmers Texas in California (see
Doc. Nos. 13, 17, 22) apparently based on its having a California mailing address for “Customer
Service” and on the allegation that it “regularly conducts business” in both Texas and California
(Doc. No. 1, at 4).
of process, and the Magistrate Judge provided a detailed explanation of why the plaintiff’s attempts
at service were ineffective and what the law requires for service on a corporate defendant. (Id. at
2–5.) The same Order extended the time for effecting service an additional three weeks from the
date the Order was entered. (Id. at 5.)

The record reflects that the plaintiff made additional attempts to effect service of process,
following which counsel for both defendants entered notices of appearance that expressly reserved
the right to assert any defenses available under Rule 12 of the Federal Rules of Civil Procedure.
(Doc. Nos. 23, 27.) Shortly thereafter, the defendants filed their Motion to Dismiss. The Magistrate
Judge recommends granting the Motion to Dismiss based on the plaintiff’s failure to effect service
of process in a timely fashion, despite having been granted an extension of time to do so. The
Magistrate Judge did not reach the defendants’ alternative bases for dismissal. (See Doc. No. 44,
at 10.)
The Magistrate Judge found, as a matter of fact and law, that the plaintiff had not shown
that she had effected “personal” service or service by certified mail on the defendants under the

state law of Tennessee, the state where this court is located, or California law, the state where
service was attempted, as required by Rule 4(e)(1). Although the plaintiff had attempted service
by certified mail, she had not shown service upon an agent authorized by appointment or by law
to accept service of process on behalf of the defendants, as the Magistrate Judge had also explained
in the Order entered on March 18, 2022. As stated in the R&R:
Emiabata has not effected proper service under Tennessee or California law. While
both states provide that a corporation may be served by personal service of
particular individuals, Emiabata has offered no proof that she effected personal
service on anyone. Emiabata also has not shown that she effected service by mail
in compliance with either state’s rules. The summonses Emiabata has filed are
addressed to the defendant corporations, not to any of the individuals designated to
receive service. (Doc. Nos. 21, 22, 26.) Mitchell’s2 notes regarding her attempts at
service by certified mail show only that the summons was returned to sender
because the defendant had moved. (Doc. No. 26.) And, other than the return receipt
that the Court found to be inadequate documentation of service (Doc. No. 17),
Emiabata has not filed executed return receipts, which both states’ law require when
service is effected by certified mail. Thus, Emiabata has not shown that she properly
served either defendant by mail under Tennessee or California law.
(Doc. No. 44, at 9–10.)
Emiabata has lodged the following Objections to the R&R:
(1) the plaintiff’s claims have an arguable basis in law and fact;
(2) the plaintiff’s attempted service by a Texas Constable was proper under Texas law, as
one of the defendants has its principal place of business in Texas;
(3) if the Constable made a mistake and service was ineffective, the Magistrate Judge
should have allowed the plaintiff to “cure the defect” in service (Doc. No. 45, at 3);
(4) the Magistrate Judge’s refusal to give the plaintiff “notice of the deficiency and an
opportunity to cure or amend” violated her right to due process (id. at 5, 6);
(5) the Magistrate Judge’s footnote to the effect that the relationship between the plaintiff
and Philip Emiabata (who has signed some of the plaintiff’s certificates of service and summonses)
is not clear should be stricken “for the sake of justice” (id. at 3);
(6) the plaintiff should be permitted to effect service of process by serving the defendants’
lawyer;
(7) any failure to effect service of process constitutes excusable neglect;
(8) plaintiff’s service conforms with procedural due process; and

2 Charisa Mitchell is the Texas Deputy Constable whom Emiabata apparently engaged to
effect service. (See Doc. No. 26; Doc. No. 45, at 2–3.)
(9) the defendants submitted to the court’s exercise of jurisdiction by filing their Motion to
Dismiss.
II. STANDARD OF REVIEW
Within fourteen days after being served with a report and recommendation any “party may
serve and file specific written objections to [a magistrate judge’s] proposed findings and

recommendations.” Fed. R. Civ. P. 72(b)(2) (emphasis added). The district court must review de
novo any portion of the report and recommendation “that has been properly objected to.” Fed. R.
Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). In conducting its review, the district court “may
accept, reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C.
§ 636(b)(1).
District judges generally will not entertain issues and arguments that appear for the first
time in objections to a magistrate judge’s report and recommendation. Murr v. United States, 200
F.3d 895, 902 n.1 (6th Cir. 2000); see also Moore v. Prevo, 379 F. App’x 425, 428 n.6 (6th Cir.
2010); Glidden Co. v. Kinsella, 386 F. App’x 535, 544 & n.2 (6th Cir. 2010) (declining to review

an issue that the district judge did not consider because it was not presented to the magistrate
judge); Johnson v. Stewart, No. 08-1521, 2010 WL 8738105, at *1 (6th Cir. May 5, 2010)
(concluding that a plaintiff waived a claim by failing to raise it before the magistrate judge).
Although pro se pleadings and filings are held to less stringent standards than those drafted
by lawyers, see, e.g., Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011), pro se litigants are not
entirely exempt from the requirements of the Federal Rules of Civil Procedure. See, e.g., Wells v.
Brown, 891 F.2d 591, 594 (6th Cir. 1989).
III. ANALYSIS
As the Magistrate Judge explained,
“the 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) . . . . 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.
(Doc. No. 44, at 6.) The plaintiff’s arguments in her Objections largely miss this point.
First, whether the substantive claims in the Complaint have an arguable basis in fact or law
is not at issue here. The court cannot address the substance of a Complaint if it is not properly
served on the defendants.
The plaintiff’s statement that her attempts to effect service through a Texas Constable,
under Texas law, is immaterial in light of the fact that, although the plaintiff claims that one of the
defendants has its principal place of business and place of incorporation in Texas, she attempted
to serve it in California. The Magistrate Judge correctly explained that the plaintiff had two choices
of law: she could serve the defendants in accordance with the law of the state “where the district
court is located or where service is made,” Fed. R. Civ. P. 4(e)(1). This court is in Tennessee and
service was made (or attempted) in California, making Texas law irrelevant.
The Magistrate Judge’s recommendation that the Complaint be dismissed based on the
plaintiff’s failure to effect timely service is neither unduly harsh nor unfair. The plaintiff did not
lack notice of this possibility. The Magistrate Judge gave the plaintiff ample notice of the defects
in her service attempts in the Order entered on March 18, 2022. (Doc. No. 20.) That Order clearly
explained the law and gave the plaintiff an additional three weeks to effect service—in a case that
had by then already been pending for nine months. In the intervening nine months following the
filing of the defendants’ Motion to Dismiss (in June 2022), articulating the reasons why service
was ineffective, the plaintiff has made no attempt to cure the defective service.
The Magistrate Judge’s footnote stating that the relationship between the plaintiff and
Philip Emiabata is not clear was inserted only because of the reference to Philip Emiabata as the

individual whose signature appears on the affidavits accompanying the summonses. (See Doc.
Nos. 21, 22.) The reference did not in any way prejudice the plaintiff and was intended to explain
why Philip Emiabata was not identified in the R&R.
Service of process on the defendants’ lawyer is not a method of service authorized by the
Federal Rules of Civil Procedure, and the defendants here have not chosen to waive service.
Moreover, neither their notices of appearance (which expressly reserved all available defenses)
nor their Motion to Dismiss operated as a waiver of their ability to object to the method of service.
The defendants’ actual knowledge of the lawsuit “does not substitute for proper service” under
Rule 4. Friedman v. Est. of Presser, 929 F.2d 1151, 1155 (6th Cir. 1991); see also Blessing v.
Chandrasekhar, 988 F.3d 889, 894 (6th Cir. 2021) (finding that a defendant did not waive her

personal jurisdiction defense when her lawyer filed a notice of appearance of counsel two weeks
before moving to dismiss).
Regarding the plaintiff’s assertion that any failure to effect service of process constitutes
excusable neglect, the court finds that the plaintiff’s failure to effect service prior to the Magistrate
Judge’s show-cause Order on February 22, 2022 (Doc. No. 16) amounted to excusable neglect.
Her failure to do so in the year since then is not excusable, despite her pro se status.
On de novo review, the court finds that none of the plaintiff’s Objections has merit. Further,
although the Magistrate Judge did not reach the question of personal jurisdiction, the court finds
that even if the plaintiff had properly effected service of process, dismissal based on lack of
personal jurisdiction would almost certainly be required. “A court’s exercise of personal
jurisdiction over a nonresident defendant is appropriate only if it meets the state’s long-arm statute
and constitutional due process requirements.” Intera Corp. v. Henderson, 428 F.3d 605, 615 (6th
Cir. 2005). “Tennessee’s long-arm statutes expand the jurisdictional reach of Tennessee courts as

far as constitutionally permissible.” Crouch Ry. Consulting, LLC v. LS Energy Fabrication, LLC,
610 S.W.3d 460, 471 (Tenn. 2020) (internal quotation marks and citations omitted). Due process
requires that a defendant have “certain minimum contacts” with the forum state such that the
exercise of jurisdiction does not offend “traditional notions of fair play and substantial justice.” Id.
(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316(1945)).
As to the existence of minimum contacts, the Supreme Court has stated that contacts are
sufficiently meaningful when they demonstrate that the defendant has purposefully directed
activities at or availed itself of the forum state in such a way that the defendant should reasonably
anticipate being haled into court there. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472–74
(1985). This “‘purposeful availment’ requirement ensures that a defendant will not be haled into a

jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts, or of the ‘unilateral
activity of another party or a third person.’” Id. at 475 (citations omitted).
“Whether a forum State may assert specific jurisdiction over a non-resident defendant focuses
on the relationship among the defendant, the forum, and the litigation.” Walden v Fiore, 571 U.S. 277,
283–84 (2014) (internal quotation marks and citations omitted). “For a State to exercise jurisdiction
consistent with due process, the defendant’s suit-related conduct must create a substantial connection
with the forum State.” Id. at 284. In this case, the plaintiff alleges that she was involved in a car
accident in Tennessee, but her presence in Tennessee does not mean the defendants directed any
of their activities in relation to the plaintiff’s specific claims here. Moreover, the plaintiff’s claims
are based on allegations that the defendants (while based in Texas and California) marketed and
sold her a defective insurance policy while she was living in Texas. The plaintiff’s claims against
the defendants does not arise from the defendants’ contacts in Tennessee, for purposes of the
exercise of specific jurisdiction. See Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773,
1780 (2017) (“In order for a state court to exercise specific jurisdiction, the suit must aris[e] out

of or relat[e] to the defendant’s contacts with the forum.” (internal quotation marks and citation
omitted)).
Nor do the plaintiff’s allegations establish a basis for the exercise of general jurisdiction.
While the plaintiff asserts very broadly that the defendants are “present and doing business in the
state of Tennessee,” including “marketing, advertising” and profiting from sales in this state (Doc.
No. 1, at 6), she alleges no actual facts supporting that assertion or otherwise suggesting that the
defendants have purposefully directed their activities toward Tennessee on a regular basis. They
are not incorporated in Tennessee, and their principal places of business are not in this state. The
plaintiff does not allege that either defendant has an office here, employees here, an agent for
service of process here, or customers here, or that the defendants have taken any other concrete

actions that would create a substantial relationship between them and Tennessee, for purposes of
the exercise of general jurisdiction. See Bristol-Myers Squibb, 137 S. Ct. at 1780 (“[T]he paradigm
forum for the exercise of general jurisdiction[,] for a corporation, [is a place] in which the
corporation is fairly regarded as at home.” (citation omitted).
The defendants’ Motion to Dismiss also asserts that venue in this court would not be
appropriate. Even if the court had jurisdiction over the defendants, this argument, too, would likely
have merit. Under 28 U.S.C. § 1391,
[a] civil action may be brought in
(1) a judicial district in which any defendant resides, if all defendants are residents
of the State in which the district is located;
10

(2) a judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred, or a substantial part of property that is the subject of the
action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided
in this section, any judicial district in which any defendant is subject to the court's
personal jurisdiction with respect to such action.
28 US.C.A. § 1391(b).
None of these provisions makes the Middle District of Tennessee an appropriate venue.
Neither defendant resides in Tennessee. Although the vehicular accident took place in Tennessee,
none of the “events or omissions giving rise to the claim” actually took place in Tennessee. And
subsection (3) does not apply, insofar as the plaintiffs allegations make it clear that she could have
filed suit in either California or Texas, where the defendants clearly would be subject to personal
jurisdiction. Venue in this district would not be appropriate. The court is authorized to dismiss any
case “laying venue in the wrong division or district.” 28 U.S.C. § 1406(a).
It therefore appears that, even if the plaintiff had effected service on the defendants, their
Motion to Dismiss would have been granted on other grounds.
IV. CONCLUSION AND ORDER
For the reasons set forth herein, the R&R (Doc. No. 44) is ACCEPTED in its entirety; the
Motion to Dismiss (Doc. No. 28) is GRANTED, and the Complaint is DISMISSED WITHOUT
PREJUDICE. All other pending motions are DENIED AS MOOT.
It is so ORDERED.
This is the final Order in this action, for purposes of Rule 58 of the Federal Rules of Civil
Procedure. ff
Metiil bag —
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10438471. Public record. Not legal advice.