Nicholas Hoffman v. City of Birmingham Retirement and Relief System and the Board of Managers of the City of Birmingham Retirement and Relief System (Appeal from Jefferson Circuit Court: CV-23-900802).

Rel: August 23, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.

Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,

Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections

may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

SPECIAL TERM, 2024

_________________________

SC-2023-0803

_________________________

Nicholas Hoffman

v.

City of Birmingham Retirement and Relief System and

the Board of Managers of the City of Birmingham Retirement

and Relief System

Appeal from Jefferson Circuit Court

(CV-23-900802)

WISE, Justice.

Nicholas Hoffman appeals from the Jefferson Circuit Court's

judgment dismissing his mandamus petition against the City of

Birmingham Retirement and Relief System ("the System") and the Board

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of Managers of the System ("the Board") (collectively referred to as "the

respondents").

Facts and Procedural History

Hoffman worked as a firefighter for the City of Birmingham ("the

City") from 2009 until 2022, when he was released from duty because of

a medical condition. As a firefighter for the City, Hoffman was a

participant in the System. Hoffman applied for both extraordinary and

ordinary disability benefits. On December 14, 2022, the Board denied

both claims. On December 28, 2022, the Board sent two letters by

certified mail informing Hoffman of its decision.

On March 10, 2023, Hoffman filed a petition for writ of mandamus

in the Jefferson Circuit Court, seeking review of the Board's decision

pursuant to § 45-37A-51.139, Ala. Code 1975 (Local Acts, Jefferson

County). He requested that the circuit clerk serve the System and the

Board by certified mail. The petition included the following addresses for

the System and the Board:

"City of Birmingham Retirement and Relief System

"Attention: Rachelle Christion[,] Payroll and Pension

"Administrator

"710 North 20th Street

"1st Floor-Office of Payroll and Pens[i]on Administration

"Room 194

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"Birmingham, AL 35203"

_____________________________

"Board of Managers

"City of Birmingham Retirement and Relief System

"Attention: The Honorable Randall L. Woodfin, Cha[ir]man

"710 North 20th Street

"1st Floor Office of Payroll and Pens[i]on Administration

"Birmingham, AL 35203"

The clerk of the Jefferson Circuit Court recorded that the

respondents had been served with process by certified mail on March 15,

2023. The return receipts for the mailings indicated that an individual

named Terry Van Hooser had signed for the certified mail.

On May 3, 2023, Hoffman moved for a default judgment, arguing

that the respondents had been served on March 15, 2023, and that they

had failed to answer or respond to the petition.

On May 4, 2023, the respondents filed a "Motion to Quash Alleged

Service," arguing that they had not been served with process.

Specifically, they contended:

"2. Such alleged service was not done in accordance with

[Ala. R. Civ. P.] 4(c)(8) which requires service of the

Complaint upon: '... the chief executive officer or the clerk, or

other person designated by appointment or by statute to

receive service of process.'

"3. Alabama Code Sec. 45-37A-51.139[] requires that,

'The petition may designate the board as respondent or the

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members thereof as respondents. Each [r]espondent shall be

served with process, unless the respondent or his or her or its

attorney accepts service.'

"4. The [c]ertified [m]ail was signed for by an employee

of the City of Birmingham's Department of Finance.

"5. The City of Birmingham Retirement and Relief

System is a separate and distinct governmental entity from

the City of Birmingham.

"6. The City of Birmingham and employees in the

Department of Finance are not agents of service for [the

respondents] and have not been designated as such.

"7. No members of the Board of Managers signed for the

[c]ertified mail. The individual that signed for the certified

mail was not even an employee of the System.

"8. Neither the System, the Board, nor any members of

the Board, were ever served with process in this lawsuit.

"9. Any return of service was incorrectly reported to the

Jefferson County Circuit Court clerk's office."

On May 5, 2023, Hoffman filed a response to the motion to quash,

arguing that the respondents had failed to support their motion with

evidence demonstrating that the circuit clerk had improperly recorded

that service had been made on March 15, 2023. He also attached

screenshots from the City's website indicating that Rachelle Christion

was the "Payroll & Pension Administrator" and that listed Room 194 on

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the first floor of City Hall as the location for the office of pension

administration. He then argued:

"As the Court knows, the term 'administration' means

'performance of executive duties' according to the Merriam-

Webster dictionary. Therefore, the executive duties

(decisions, payments, and the running of the pension)[] are

performed at this office upon which service was made. It

appears to be a ruse then to argue that service was on the City

of Birmingham's Department of Finance when in fact service

was on the executives responsible for administering the City

of Birmingham Retirement and Relief System pension. If [the

respondents] intend for service to be upon some place or entity

other than the location of pension administration, then [the

respondents] should cease permitting such a representation

on the website and provide correct information."

He went on to assert that the respondents' motion to quash was merely

an effort to delay litigation; that he had mailed a courtesy copy of the

petition to the City Attorney's office; that he had subsequently contacted

the City Attorney's office about filing an answer to the petition; that he

had exchanged emails with general counsel for the City "in an effort to

see a response to the petition without the necessity of filing a default

judgment at the added expense" to Hoffman; and that the respondents'

counsel "has sought to delay matters and file the present motion."

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On June 13, 2023, before the trial court had ruled on the motion to

quash, Hoffman made a second attempt to serve the respondents, this

time by sheriff. The process was addressed to:

"BOARD OF MANAGERS CITY OF BIRMINGHAM

RETIREMENT AN[D], MAYOR RANDALL WOODFIN 710

20TH STREET N. 3RD FL, BIRMINGHAM, AL 35203"

(Capitalization in original.) On June 28, 2023, a return of service of

process was made by the Jefferson County Sheriff's Department

certifying that "Keyrah Smith -- Clerk" had accepted service.

On July 17, 2023, the trial court entered an order denying

Hoffman's motion for a default judgment. On that same date, the trial

court entered an order granting the respondents' motion to quash and

ordering Hoffman "to perfect service on the [respondents] within thirty

(30) day[s] of the date of this order or this case may be dismissed."

On August 2, 2023, Hoffman served the respondents with discovery

requests. On August 31, 2023, 45 days after the trial court had ordered

Hoffman to perfect service, the respondents filed a second "Motion to

Quash Alleged Service." In their second motion to quash, the

respondents argued:

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"4. The Return on Service filed with the Court certifies

that 'Keyrah Smith -- Clerk' was served with the [petition] by

'J.H. Smith.' ….

"5. Neither the System nor the Board employs any

'Keyrah Smith -- Clerk,' nor is such person a member of the

Board, nor is such person authorized or empowered to accept

service of process on behalf of the [respondents].

"6. The City of Birmingham is a separate and distinct

governmental entity from the System and the Board.

"7. The Alias Summons in this case was served on

[Keyrah] Smith, an employee in the City Clerk's office of the

City of Birmingham.

"8. The City of Birmingham is not agent for service of

process for the System nor the Board.

"9. Neither the City of Birmingham Retirement and

Relief System nor the Board of Managers of the City of

Birmingham Retirement and Relief System nor any members

of the Board[] were ever served with process in this lawsuit.

"10. Any return of service was incorrectly reported to the

Jefferson County Circuit Court clerk's office."

The respondents contended that Keyrah Smith was not an employee of

the Board, a member of the Board, or an individual authorized to accept

service on behalf of the respondents. They also contended that the return

of service was incorrectly reported by the circuit clerk. On that same day,

the respondents also filed a motion to quash discovery and a motion to

dismiss. Hoffman subsequently filed objections and responses to each of

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the respondents' motions. In his response to the second motion to quash

service, Hoffman asserted:

"The Jefferson County Sheriff's office has confirmed for

Counsel that the City Clerk is the designee of the Mayor to

receive service of process for the Mayor. The City Clerk

operates on the 3rd floor of City Hall with the Mayor and

saves the Mayor from disruption of his duties by accepting

service for him. Deputy Smith served the summons himself

in the same fashion and manner as he has served many other

summonses. In fact, the 'beat' of this deputy, or his area of

duty, is to serve the Mayor and other City officials."

On September 26, 2023, the trial court entered the following

judgment, dismissing the case, with prejudice:

"Upon due consideration of all of the pleadings in this case,

the MOTION TO DISMISS[] filed by CITY OF

BIRMINGHAM RETIREMENT AND RELIEF SYSTEM and

BOARD OF MANAGERS CITY OF BIRMINGHAM

RETIREMENT AND RELIEF SYSTEM is hereby

GRANTED."

(Capitalization in original.) On October 4, 2023, Hoffman filed a motion

to vacate the judgment pursuant to Rule 59(e), Ala. R. Civ. P., which the

trial court denied. This appeal followed.

Standard of Review

" 'Before the adoption of our current Rule 4(b), [Ala. R.

Civ. P.,] some Alabama cases evaluated a dismissal for

insufficient service of process under Rule 41(b), Ala. R. Civ.

P.' State Farm Fire & Cas. Co. v. Smith, 39 So. 3d 1172, 1175

(Ala. Civ. App. 2009). 'Failure of a plaintiff to attempt to

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obtain service over the defendant within a reasonable time

may amount to a failure to prosecute the action, warranting a

dismissal of the case.' Crosby v. Avon Prods., Inc., 474 So. 2d

642, 644 (Ala. 1985); see also State v. Horton, 373 So. 2d 1096,

1097 (Ala. 1979) (same).

" 'The general rule, of course, is that a court has the

inherent power to act sua sponte to dismiss an

action for want of prosecution. However, because

dismissal ... is such a drastic sanction, it is to be

used only in extreme situations. Accordingly, this

Court carefully scrutinizes any order terminating

an action for want of prosecution, and it does not

hesitate to set one aside when an abuse of

discretion is found.'

"Burdeshaw v. White, 585 So. 2d 842, 847 (Ala. 1991)."

Voltz v. Dyess, 148 So. 3d 425, 426 (Ala. 2014).

" 'Ala. R. Civ. P. 41(b) provides for the

involuntary dismissal of an action upon "failure of

the plaintiff to prosecute or to comply with [the

Rules of Civil Procedure] or any order of [the]

court." Although dismissal for failure to comply

with a court order is a "harsh sanction," it is

warranted where there is a "clear record of delay,

willful default or contumacious conduct by the

plaintiff." Selby v. Money, 403 So. 2d 218, 220 (Ala.

1981). Because the trial judge is in the best

position to assess the conduct of the plaintiff and

the degree of noncompliance, his decision to grant

a motion to dismiss for failure to prosecute will be

accorded considerable weight by a reviewing court.

Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 947

(9th Cir. 1976); Von Poppenheim v. Portland

Boxing & Wrestling Comm'n, 442 F.2d 1047, 1051

(9th Cir. 1971), cert. denied, 404 U.S. 1039, 92 S.

9

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Ct. 715, 30 L. Ed. 2d 731 (1972). Therefore we will

reverse that decision only upon a showing of abuse

of discretion. Selby, [403 So. 2d] at 220; Smith v.

Wilcox County Bd. of Educ., 365 So. 2d 659 (Ala.

1978).'

"Jones v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 604 So.

2d 332, 341 (Ala. 1991). Moreover, ' "[w]illful" is used in

contradistinction to accidental or involuntary noncompliance.

No wrongful motive or intent is necessary to show willful

conduct.' Selby v. Money, 403 So. 2d 218, 221 (Ala. 1981)."

Curry v. Miller, 261 So. 3d 1175, 1178 (Ala. 2018).1

Discussion

On appeal, Hoffman argues that the trial court improperly

dismissed his mandamus petition. Section 45-37A-51.139(a), provides, in

pertinent part:

"Any decision of the board denying a benefit claimed may be

subject to review by the circuit court, in the manner and

subject to the limitations herein provided. An employee may

secure a review of a decision of the board by mandamus

proceedings in the circuit court, which proceedings the

employee shall institute, in the court by filing therein a

petition for mandamus. The petition may designate the board

as respondent or the members thereof as respondents. Each

respondent shall be served with process, unless the

respondent or his or her or its attorney accepts service. The

petition for mandamus shall be barred if it is not filed within

1"This Court now uses the phrase 'exceeded its discretion' rather

than the phrase 'abused its discretion.' The standard of review remains

the same." Classroomdirect.com, LLC v. Draphix, LLC, 992 So. 2d 692,

701 n.1 (Ala. 2008).

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90 days from the date whereon the board of managers makes

its final decision on the benefit claimed, provided written

notice of such final decision of the board shall be given by

certified or registered mail, postage prepaid, and properly

addressed, to the claimant or his or her attorney within 10

days after such final decision of the board. If timely notice

shall not be given as provided in the last preceding sentence,

claimant shall not be barred from filing mandamus until the

expiration of 80 days from the mailing of notice as above

provided; but in no event, anything therein to the contrary

notwithstanding, shall mandamus be filed after one year from

the date of such final decision of the board …."

I.

On appeal, Hoffman argues that the trial court erred when it

granted the respondents' motion to dismiss because, he says, he properly

served them, as required by Rule 4(c), Ala. R. Civ. P.

Rule 4(c)(8) establishes the procedure for service of process on local

governments and other governmental entities. It provides:

"(c) Upon Whom Process Served. Service of process,

except service by publication as provided in Rule 4.3, [Ala. R.

Civ. P.,] shall be made as follows:

"....

"(8) Local Governments and Other

Governmental Entities. Upon a county, municipal

corporation, or any other governmental entity not

previously mentioned, or an agency thereof, by

serving the chief executive officer or the clerk, or

other person designated by appointment or by

statute to receive service of process, or upon the

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attorney general of the state if such service is

accompanied by an affidavit of a party or the

party's attorney that all such persons described

therein are unknown or cannot be located."

Rule 4(c)(8). Pursuant to § 45-37A-51.130, Ala. Code 1975 (Local Acts,

Jefferson County), the mayor of the City serves as the chair of the Board.

A.

First, Hoffman argues that the trial court erred in granting the first

motion to quash because, he says, proper service was made on the

respondents by certified mail. Rule 4(i)(2), which allows service of

process to be perfected using certified mail, provides, in pertinent part:

"(C) When Effective. Service by certified mail shall be

deemed complete and the time for answering shall run from

the date of delivery to the named addressee or the addressee's

agent as evidenced by signature on the return receipt. Within

the meaning of this subdivision, 'agent' means a person or

entity specifically authorized by the addressee to receive the

addressee's mail and to deliver that mail to the addressee.

Such agent's authority shall be conclusively established when

the addressee acknowledges actual receipt of the summons

and complaint or the court determines that the evidence

proves the addressee did actually receive the summons and

complaint in time to avoid a default."

Rule 4(i)(2)(C) (emphasis added). In this case, it is undisputed that

Hoffman requested that service be made on the respondents by certified

mail. It is also undisputed that the certified-mail return receipts were

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signed by Terry Van Hooser, an employee in the City's finance

department.

In their initial motion to quash, the respondents argued that

Hoffman had failed to properly perfect service on them because

employees in the City's finance department are not agents authorized to

accept service for them. On appeal, Hoffman argues:

"The presumption … that the employee was of suitable

age to accept service or was an agent for his superior who was

Treasurer of the Board and oversaw the System is not

rebutted with the conclusory assertion. 'The completion and

filing of a return of service is prima facie evidence that the

party to whom the service was sent has been properly served.'

Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So. 2d 655,

658 (Ala. 2001)."

Hoffman's brief at 16-17.

This Court has previously stated:

" 'In Insurance Management &

Administration, Inc. v. Palomar Insurance Corp.,

590 So. 2d 209, 213 (Ala. 1991), this Court held

that the clerk's notation of proper service creates a

presumption of proper service that can be rebutted

only by "clear and convincing evidence." In

Northbrook Indemnity Co. v. Westgate, Ltd., 769

So. 2d 890, 893 n.4 (Ala. 2000), this Court stated

that the Palomar Insurance presumption

established only that the "clerk mailed the process

and the person signing the certified-mail receipt

received the process." Palomar Insurance did not

establish a presumption as to whether the person

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signing the receipt was a proper person to receive

process or whether the place of service was the

defendant's "dwelling house or usual place of

abode." '

"(Emphasis added.)"

McDermott v. Tabb, 32 So. 3d 1, 4 (Ala. 2009) (quoting Truss v. Chappell,

4 So. 3d 1110, 1112 n.4 (Ala. 2008)). As in McDermott, in this case, the

certified-mail receipts established only that the certified mail addressed

to the System was directed to "Rachelle Christion"; that the certified mail

addressed to the Board was directed to "The Hon. Woodfin"; and that Van

Hooser had signed for both pieces of mail.2 They did not establish that

Van Hooser was authorized to accept service on behalf of the Board or

the System. Thus, Hoffman's argument that the signed certified-mail

receipts were prima facie evidence that service had been made on an

authorized agent is without merit.

Alabama law is well settled that, " '[w]hen the service of process on

the defendant is contested as being improper or invalid, the burden of

2In his brief, Hoffman argues that Van Hooser's superior was the

treasurer for the Board, but he did not present any evidence to support

that assertion. Additionally, Hoffman did not present any evidence to

establish that Christion was designated to receive service of process on

behalf of the System.

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proof is on the plaintiff to prove that service of process was performed

correctly and legally.' " McDermott, 32 So. 3d at 3 (quoting Ex parte

Volkswagenwerk Aktiengesellschaft, 443 So. 2d 880, 884 (Ala. 1983)).

Hoffman argues that Van Hooser was an agent capable of accepting

service for the respondents because he "worked for an officer of the Board,

and head of the Finance [D]epartment which administers the pension."

Hoffman's brief at 16. However, he does not cite any authority to support

this argument, as required by Rule 28(a)(10), Ala. R. App. P.

It was Hoffman's burden to prove that Van Hooser was a proper

person to accept service for the respondents. It is undisputed that Van

Hooser was not the chief executive officer of the Board or the System.

Additionally, Hoffman did not present any evidence to establish that Van

Hooser had been designated by appointment or by statute to receive

service of process for the Board or the System. See Rule 4(c)(8), Ala. R.

Civ. P. Thus, Hoffman failed to establish that his attempt to serve the

respondents by certified mail was proper pursuant to Rule 4(c)(8).3

3Hoffman also asserts that "[t]he Finance Department employee

[i.e., Van Hooser] was presumed to be a person of suitable age working at

the 'residence' of the Board and System. Ala. R. Civ. P. 4(c) permits

service by leaving the petition 'with some person of suitable age and

discretion then residing therein ...' (Emphasis added.)" Hoffman's brief

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B.

Hoffman next argues that proper service was made on the mayor of

the City by the Jefferson County Sheriff's Department. Initially, he

contends:

"The Chai[r]man of the Board is the Mayor and he is

undeniably a proper person to receive service. The Board

contends that service was improper as it was on the City

Clerk, not the Mayor. However, [t]he above rule specifically

permits service on the Clerk."

Hoffman's brief at 19 (emphasis in original). As the Court of Civil

Appeals noted in Montgomery County Board of Education v. Addison, 3

So. 3d 885, 886 n.1 (Ala. Civ. App. 2008), "[p]resumably, the reference in

Rule 4(c)(8)[, Ala. R. Civ. P.,] to 'the clerk' refers to local governments,

such as municipalities, that employ clerks." However, the Board and the

System are entities separate from the City. See City of Birmingham v.

Thomas, 220 So. 3d 333, 337 (Ala. Civ. App. 2016). Hoffman did not

present any evidence to establish that the Board or the System employs

at 18. His argument in this regard appears to be based on the language

in Rule 4(c)(1), Ala. R. Civ. P., which deals with service of process on an

individual. Because this case involves service on a governmental entity,

the provisions of Rule 4(c)(1) do not apply.

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a clerk or that Keyrah Smith served as a clerk of the Board or the System.

Therefore, Hoffman's argument in this regard is without merit.

In his response to the second motion to quash, counsel for Hoffman

also asserted:

"The Jefferson County Sheriff's office has confirmed for

Counsel that the City Clerk is the designee of the Mayor to

receive service of process for the Mayor. The City Clerk

operates on the 3rd floor of City Hall with the Mayor and

saves the Mayor from disruption of his duties by accepting

service for him. Deputy Smith served the summons himself

in the same fashion and manner as he has served many other

summonses. In fact, the 'beat' of this deputy, or his area of

duty, is to serve the Mayor and other City officials."

However, Hoffman did not submit any evidence to support those

assertions. Rather, he relied solely on the assertions of counsel included

in his response to the second motion to quash service to support his

argument. However, this Court has held that " ' "arguments of counsel

are not evidence." ' " Ex parte Coleman, 861 So. 2d 1080, 1084 (Ala. 2003)

(citations omitted). Thus, Hoffman did not satisfy his burden of proving

that Smith was authorized to accept service on behalf of the mayor.

Accordingly, he has not established that the attempted service by the

sheriff was proper pursuant to Rule 4(c)(8).

II.

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Next, Hoffman argues that the "trial court abused its discretion in

not finding good cause as to Mr. Hoffman's efforts to prosecute this case,

and denying him further time to effectuate service, if service of process

was not valid." Hoffman's brief at 14. He also argues that the trial court

erred when it dismissed his case with prejudice.

"Under Rule 4(b), Ala. R. Civ. P., an Alabama court may

dismiss an action without prejudice if service of the summons

and the complaint is not made upon a defendant within 120

days after the filing of the complaint or may, upon a showing

of good cause, extend the 120-day period for perfecting service

of process for an appropriate period. Before the adoption of

Rule 4(b), however, a plaintiff's failure to timely serve a

defendant was evaluated under Rule 41(b), Ala. R. Civ. P., to

determine whether there had been a 'failure to prosecute.'

Rule 41(b) provides that a dismissal for failure to prosecute,

unless otherwise specified, generally 'operates as an

adjudication on the merits.' Furthermore, courts have

recognized that, even after the adoption of Rule 4(b), under

certain circumstances, the failure to timely serve a defendant

may result in a dismissal for failure to prosecute under Rule

41(b). Our Court of Civil Appeals has summarized the law on

this issue as follows:

" 'Before the adoption of our current Rule

4(b), [Ala. R. Civ. P.], some Alabama cases

evaluated a dismissal for insufficient service of

process under Rule 41(b), Ala. R. Civ. P., which

provides for the involuntary dismissal of an action

upon "failure of the plaintiff to prosecute or to

comply with [the Alabama Rules of Civil

Procedure] or any order of [the] court." See State

v. Horton, 373 So. 2d 1096, 1097 (Ala. 1979)

(stating that "[f]ailure to serve process within a

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reasonable time may amount to a failure to

prosecute" and may warrant a dismissal under

Rule 41(b)); Crosby v. Avon Prods., Inc., 474 So. 2d

642, 644 (Ala. 1985) (stating that failure to

attempt to perfect service within a reasonable time

may amount to failure to prosecute an action,

warranting a dismissal); Hill v. Hawkins, 582 So.

2d 1105, 1106 (Ala. 1991) (same); Coulter v.

Stewart, 726 So. 2d 726, 728 (Ala. Civ. App. 1999)

(same); and Reynolds v. Reynolds, 491 So. 2d 968

(Ala. Civ. App. 1986) (affirming a judgment

dismissing an action more than nine months after

the complaint had been filed when the plaintiff

had failed to serve the defendant).

" ' " '[A] dismissal with prejudice [under

Rule 41(b) for lack of prosecution] is a

harsh sanction and should be used only

in extreme circumstances....

" ' " 'In Alabama and many federal

courts, the interest in disposing of the

litigation on the merits is overcome and

a dismissal may be granted when there

is a clear record of delay, willful default

or contumacious conduct by the

plaintiff.' "

" 'Burdeshaw v. White, 585 So. 2d 842, 847 (Ala.

1991) (quoting Selby v. Money, 403 So. 2d 218, 220

(Ala. 1981)).

" 'With the adoption of the current Rule 4(b),

if a plaintiff fails to perfect service within 120

days, a trial court may now dismiss an action

without prejudice pursuant to that rule. However,

in extreme circumstances, a trial court, pursuant

to Rule 41(b), may dismiss with prejudice an action

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for failure to effect service after the 120-day

window prescribed by Rule 4(b) has expired. See

O'Rourke Bros. v. Nesbitt Burns, Inc., 201 F.3d

948, 953 (7th Cir. 2000) (" 'If the delay [in obtaining

service] has been so long that it signifies failure to

prosecute -- or if the delay entails disobedience to

an order to the court -- then dismissal may be with

prejudice under Rule 41(b).' " (quoting Powell v.

Starwalt, 866 F.2d 964, 966 (7th Cir. 1989))); 4B

C. Wright and A. Miller, Federal Practice and

Procedure § 1137 (3d ed. 2002) (stating that, when

service has not been perfected within the 120-day

period and a district court has granted multiple

extensions, "a district court may well have to

decide between dismissing the plaintiff's action

with prejudice under Federal Rule 41(b) and

dismissing it without prejudice under Federal

Rule 4(m)"); and Wagner v. Ashcroft, 214 F.R.D. 78

(N.D.N.Y. 2003) (evaluating under both Rule 4(m)

and Rule 41(b) whether an action should be

dismissed when a greater than three-year period

elapsed without the plaintiff perfecting service).'

"State Farm Fire & Cas. Co. v. Smith, 39 So. 3d 1172, 1175-

76 (Ala. Civ. App. 2009) (emphasis added; footnote omitted).

See also Voltz v. Dyess, 148 So. 3d 425, 426 (Ala. 2014)

(quoting Crosby v. Avon Prods., Inc., 474 So. 2d 642, 644 (Ala.

1985)) (' "Failure of a plaintiff to attempt to obtain service over

the defendant within a reasonable time may amount to a

failure to prosecute the action, warranting a dismissal of the

case." ')."

Kennedy v. Jessie, [Ms. SC-2022-0982, Oct. 27, 2023] ___ So. 3d ___, ___

(Ala. 2023) (plurality opinion).

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In his "Objection and Response to Motion to Dismiss," Hoffman

alleged:

"4. Second, service was made upon [the respondents]

within 30 days of the Court's order of July 17, 2023. The order

directed [Hoffman] to serve [the respondents] within 30 days

of the order, but it did not say within 30 days AFTER the

order. On June 13, 2023, [Hoffman], not desiring to see this

action further delayed, filed an alias summons, prior to the

Court's order, requesting the Jefferson County Sheriff's

Department to serve the Mayor. Service on the Mayor was

made on June 28, 2023. That date is within 30 days of July

17, 2023.

"5. Third, the Court's order of July 17, 2023 did not

purport to rule on any matter other than the first motion to

quash service that had been filed. [The respondents'] second

motion to quash service was not filed until August 31, 2023[,]

more than 45 days after the Court's Order. The [respondents]

are currently arguing that the Court's order of July 17, 2023

should be applied to matters in the future that were not the

subject of the motion ruled on. Certainly, the [respondents]

could have filed a motion to quash prior to the Court's July 17,

2023 order, as service was perfected on June 28, 2023.

However, [the respondents] chose to wait 56 days to contest

this second effort.

"6. Fourth, [Hoffman] had no notice of the need to

attempt any further service when both the Circuit Clerk[] and

the Sheriff's Department reported that service was made back

on June 28, 2023. [The respondents'] argument that Hoffman

must achieve perfection of service without notice that service

has not been perfected is illogical and unfair.

"7. Fifth, [Hoffman] has good cause to be permitted

additional time to perfect service. The motion to dismiss is

due to be denied based on Ala. R. Civ. P. Rule 4(b). [Hoffman]

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has good cause for the time frame that has passed and has

complied with the Court's Order. The rule states in relevant

part:

" '(b) Time limit for service. If service of the

summons and complaint is not made upon a

defendant within 120 days after the filing of the

complaint. the court, upon motion or on its own

initiative, after at least fourteen (14) days' notice

to the plaintiff, may dismiss the action without

prejudice as to the defendant upon whom service

was not made or direct that service be effected

within a specified time; provided, however, that if

the plaintiff shows good cause for the failure to

serve the defendant, the court shall extend the

time for service for an appropriate period.'

(Emphasis added).

"The facts as noted in the record are:

"a. [Hoffman] sought to serve [the

respondents] with the filing of the petition for

mandamus. Service was made on March 15, 2023.

There was no delay by [Hoffman]. Service was

reasonably believed to be proper as it was made on

the first floor of City Hall which is the same

location from which the pension decision was sent

to [Hoffman] by certified mail and was the same

location in which [the respondents] hold out as

being the base of pension operations on [their]

shared … website with the City.

"b. [Hoffman] also emailed a copy of the

lawsuit on March 10, 2023 to the City Attorney's

office, which was known to be Counsel for the

[respondents]. No motion to quash service was

filed until May 4, 2023, 55 days later.

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"c. The first notice that the service was

found by the Court to be insufficient was on July

17, 2023. There was no notice that [Hoffman]

must attempt further service until the Court ruled

on [the respondents'] motion to quash on that date.

[Hoffman] is not required to assume how the Court

will rule, and he did not delay.

"d. [Hoffman] attempted to be proactive,

however, to moot the service issue and perhaps

save judicial time. [Hoffman], more than a month

before the July 17th Order, sought service by

Sheriff on the Mayor requested on June 13, 2023.

Still prior to the Court's Order, the Jefferson

County Sheriff's Department served the Mayor on

June 28, 2023.

"e. Again, [Hoffman] had no notice that [the

respondents] or the Court thought this personal

service was insufficient. [The respondents] first

raised this contention that service was insufficient

on August 31, 2023. That delay is not attributable

to [Hoffman].

"f. [Hoffman] further attempted to

proactively move this litigation forward by serving

discovery on [the respondents] on August 2, 2023,

given that service of process was made on June 28,

2023[,] more than 30 days before.

"g. Long after [Hoffman] attempted service

by Sheriff, [the respondents] now contend that

service upon the City Clerk who routinely accepts

service of summons for the Mayor, based on

information reported by the Jefferson County

Sheriff's Department, is improper. [The

respondents] contend she is not an unauthorized

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[sic] person to accept service for the Mayor.

[Hoffman] did not delay.

"h. [Hoffman] has not delayed in this matter

at any point and has been frustrated by [the

respondents'] failure to provide any legitimate

address at which certified mail can be effectuated

by the United States Postal Service. Apparently

there are no employees for the [respondents] and

all Board Members are involved working in other

occupations. Despite the statute clearly

permitting service on the Board as an entity and

clearly permitting service by certified mail, the

same is unnecessarily difficult given [[the

respondents] may always contend that no City

employee may accept service, even at the very

location from which the Pension is administered.

As a governmental entity, [the respondents]

should be required to provide a specific address

and specific employee(s) authorized to accept

service by certified mail. No other [d]efendant in

litigation may hide within the cloak of City

government to prevent service.

"i. [Hoffman] has also been frustrated by [the

respondents] now challenging personal service by

a Jefferson County Sheriff's deputy who was

following the protocol he understood the Mayor's

office desired to follow. The relevant statute does

not provide any address at which personal service

of process can be made. The [respondents] are not

required to report this information to the Alabama

Secretary of State and have not. [The

respondents] utilize City employees routinely in

the operation of the pension benefit, and yet

simultaneously contend that the same employees

are not permitted to accept service. City

employees have a right to seek recourse for wrong

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decisions made by [the respondents], and such

rights are due better protection.

"8. [Hoffman] has established good cause under the

rule. In the event that the Court grants the second motion to

quash, [Hoffman] requests that the Court Order [the

respondents] to provide a person and address at which service

can be made, and/or grant Hoffman additional time to either

attempt service by a specially appointed process server,

and/or permit time for [Hoffman] to effectuate service upon

the Alabama Secretary of State[4] when supported by affidavit

from [Hoffman's] Counsel as allowed by the rules."

(Capitalization and emphasis in original.)

In this case, Hoffman argues that he "diligently prosecuted this

action," Hoffman's brief at 23, and that he established good cause because

"he exhibited a bona fide intent to serve the Board and System at all

times and did not delay." Hoffman's brief at 14.

The facts before this Court indicate that Hoffman filed the petition

for a writ of mandamus with the intent to immediately serve the

respondents and that Hoffman consistently sought to perfect service of

process. When the respondents filed a motion to quash service, Hoffman

attempted to effectuate service for a second time through the sheriff's

office "to moot the service issue and perhaps save judicial time." After

4Rule 4(c)(8), Ala. R. Civ. P., provides for service upon the attorney

general rather than the secretary of state.

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his second attempted service, Hoffman, who was under the impression

that the respondents had been properly served by the sheriff's office,

proceeded to move litigation forward by serving discovery requests on the

respondents. Moreover, in his objection and response to the respondents'

second motion to quash service, Hoffman asked the trial court to

"deny the motion to quash, or in the alternative that the Court

order that [the respondents] provide a definitive address and

person able to accept service for [the respondents], by certified

mail upon a designated employee through the U.S. Postal

Service, and by personal service from the Jefferson County

Sheriff's Department. Otherwise [Hoffman] will request a

special process server to attempt service personally on the

Mayor. If that fails [Hoffman's] Counsel may file an affidavit

that [the respondents] 'cannot be located' due to the

respondents' ability to hide within the cloak of the City and

will then serve the Attorney General for the State of Alabama

as provided in the Rules of Civil Procedure."

Based on the record before us, it does not appear there was a " ' "clear record

of delay, willful default or contumacious conduct" ' " by Hoffman, Curry,

261 So. 3d at 1178 (citations omitted), or evidence of his " ' " 'disobedience

to an order of the court.' " ' " Kennedy, ___ So. 3d at ___ (citations omitted).

Thus, the trial court exceeded its discretion when it granted the

respondents' motion and dismissed Hoffman's petition with prejudice. 5

5Based on our disposition of this issue, we pretermit discussion of

Hoffman's argument that the trial court erroneously dismissed his

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Conclusion

Based on the foregoing, the trial court exceeded its discretion when

it dismissed Hoffman's mandamus petition with prejudice. Accordingly,

we reverse the trial court's judgment and remand this case for

proceedings consistent with this opinion.

REVERSED AND REMANDED.

Parker, C.J., and Stewart and Cook, JJ., concur.

Sellers, J., concurs in the result, with opinion.

petition without providing him with at least 14 days' notice, as required

by Rule 4(b), Ala. R. Civ. P.

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SELLERS, Justice (concurring in the result).

I concur in the result of the main opinion, which reverses the

Jefferson Circuit Court's judgment dismissing with prejudice Nicholas

Hoffman's mandamus petition against the City of Birmingham

Retirement and Relief System ("the System") and the Board of Managers

of the System ("the Board") (collectively referred to as "the respondents"),

based on lack of proper service. The record reveals that the Board sent

Hoffman two certified letters denying his claims for extraordinary

disability benefits and ordinary disability benefits, respectively.

Hoffman filed a petition for a writ of mandamus seeking review of the

Board's decision pursuant to Ala. Code 1975, § 45-37A-51.139, (Local

Laws, Jefferson County). That statute provides that the petition "may

designate the board as respondent or the members thereof as

respondents" and that "[e]ach respondent shall be served with process,

unless the respondent or his or her or its attorney accepts service." Rule

4(c)(8), Ala. R. Civ. P., provides that service of process upon local

governments and other governmental entities is established by serving

the "chief executive officer or the clerk." Hoffman complied with the law

and attempted service by certified mail and also utilized the services of

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the sheriff's office to perfect service. Importantly, counsel for Hoffman

also emailed a copy of the petition for a writ of mandamus to Jay. P.

Turner, the city attorney for the City of Birmingham ("the City"), who

represents the respondents. Several email exchanges occurred between

the attorneys regarding the respondents' failure to file an answer or to

otherwise respond to Hoffman's petition. According to Hoffman, Turner

"brusquely responded [to Hoffman's counsel] that he would file a motion

to quash service." Hoffman's brief at 24. After Hoffman filed a motion

for a default judgment based on the respondents' failure to answer,

Turner did, in fact, file a motion to quash service. It is undisputed that

the purpose of service is to give notice of an action to a defendant. Hughes

v. Cox, 601 So. 2d 465, 470 (Ala. 1992). In my opinion, the actions of the

respondents indicate that they had actual knowledge of Hoffman's

petition seeking review of the Board's decision. Yet, rather than

exercising good faith and responding to the petition on the merits, the

respondents evidenced an intent to subvert justice, presumably by

allowing and designating employees to receive service and then arguing

that those employees had no authority to do so. As Hoffman points out,

he served the petition for a writ of mandamus by certified mail at the

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same address that was listed on the Board's letters denying his claims,

and the respondents use the same address as the City, share a telephone

number with the City, and share a website with the City. One of the

hallmarks of any going concern, like the respondents here, is the ability

to sue and be sued. Indeed, the nature of the respondents' work

anticipates that legal action will be necessary. Although a defendant has

no duty to make itself an easy target of litigation, governmental entities,

like the respondents here, should not make it difficult for plaintiffs to

perfect service by obfuscating the means to do so. Thus, if a large

organization, such as the Board or the System, does not have someone

officially authorized or otherwise designated to accept service, yet

someone within the organization accepts service or signs a receipt

acknowledging service, then courts should factor that into consideration

to find that service has been perfected. See Reeves v. Wilson Floor &

Wallcovering, Inc., [Ms. SC-2023-0410, Jan. 19, 2024] ___ So. 3d ___, ___

(Ala. 2024) (Sellers, J., concurring in the result) ("In my view, service of

process on a corporation via certified mail is perfected when an officer or

other agent authorized to accept service gets actual notice, which can be

substantiated through evidence, that the corporation is being sued.

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Thereafter, the defendant should not be allowed to rely on a technical

defect in the certified-mailing procedure. To protect its rights and avoid

the entry of a default, a defendant with actual knowledge of an action

against it must answer the complaint or otherwise defend."). Accordingly,

in addition to reversing the judgment of the trial court dismissing

Hoffman's action with prejudice, I would direct the trial court to

acknowledge that service was perfected on the respondents and to

proceed to determining the merits of the case. I see no need to require

Hoffman to attempt service a third time. I thus concur in the result.

31