“Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.” (citation omitted)
How later courts described this case
- “Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.” (citation omitted)
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
RICK BOSAN, )
)
Plaintiff, )
) No. 2:24-cv-02140-TLP-cgc
v. )
) JURY DEMAND
UNIVERSITY PLACE SENIOR LIVING )
SE LP, et al., )
)
Defendants. )
ORDER ADOPTING REPORT AND RECOMMENDATION
Pro se Plaintiff Rick Bosan sued Defendants University Place Senior Living SE LP
(“University Place”), Memphis Housing Authority (“MHA”), Department of Housing and Urban
Development, Memphis Area Legal Services, The Baer Law Firm (“Baer”), Attorney Krista
Holder-Williams (Holder-Williams),1 and Shelby County Clerk’s Office for a civil rights
violation under 42 U.S.C. § 1983. (ECF No. 1.) Defendant University Place, joined by
Defendant MHA, moved to dismiss for lack of personal jurisdiction, insufficient process, and
insufficient service of process. (ECF No. 12 (University Place’s motion to dismiss); ECF No. 17
(MHA’s motion to join University Place’s motion); ECF No. 46 at PageID 313 (granting motion
to join).) Plaintiff opposed the motion (ECF No. 19), and Defendant University Place replied
(ECF No. 22). Magistrate Judge Charmaine G. Claxton then entered a Report and
1 The Court dismissed Defendants Baer and Holder-Williams in an earlier order. (See ECF Nos.
40, 53.)
Recommendation (“R&R”) recommending that the Court grant dismissal in favor of University
Place and MHA. (ECF No. 46.) Plaintiff did not object.
For the reasons below, the Court ADOPTS the R&R and DISMISSES WITHOUT
PREJUDICE Plaintiff’s claims against University Place and MHA.
BACKGROUND
Plaintiff’s Complaint asserts a claim under 28 U.S.C. § 1983 related to his eviction for
failing to pay rent.2 (ECF No. 1 at PageID 1, 4–5.) Plaintiff filed a summons for Defendant
University Place, but the attached Proof of Service form is incomplete. (ECF No. 15 at PageID
73.) The form includes a date and Plaintiff’s name, signature, and address as the process server,
but there is no information about who was served or how that person was served. (Id.) Plaintiff
also included a half-complete certified mail delivery notice. (Id. at PageID 74.)
University Place’s motion to dismiss explains that service was sent to its office building
but did not name the company correctly and was not directed to a party able to accept service on
the company’s behalf. (ECF No.12-1 at PageID 52 (citing Fed. R. Civ. P. 4(h)(1)(B)).) Plaintiff
also sent service by certified mail but did not get a signed return receipt under Tennessee’s rules
for service by certified mail. (Id. at PageID 52–55 (citing Fed. R. Civ. P. 4(c); Tenn. R. Civ. P.
4.04).) And the affidavit from University Place’s authorized agent Ninotchka Shaw attests that
she did not sign for the mail, did not see the postal worker deliver it, and is the only person
authorized to sign for certified mail addressed to her. (Id. at PageID 60.)
2 Plaintiff asserts that University Place “[f]iled a fraudulent claim against the plaintiff for
FAILURE TO PAY RENT.” (ECF No. 1 at PageID 4.) And as to Defendant MHA, Plaintiff
claims that “Compliance Officer Ms. T Brown” and “Attorney Barbara Dean[] failed to follow
HUD’S GRIEVANCE PROTOCOL regarding landlord tenant issues related to right to recourse
where destruction of property, threats of violence to staff or other residents, and non-payment of
rent are not concerned.” (Id.) The merits of these allegations are not relevant to the motions
here.
Plaintiff filed a summons for Defendant MHA too. (ECF No. 24 at PageID 187.) The
Proof of Service states that Rodney Harper served process on Tomecia Brown in May. (Id.) But
the proof of summons notes that it was “placed in business mailbox.” (Id.) And according to
Defendant MHA’s motion and accompanying affidavit from Bradley Clark, MHA received
service through regular mail, and no one at MHA signed anything regarding proof of delivery.
(ECF No. 17-1 at PageID 85–86.)
Defendants University Place and MHA moved to dismiss Plaintiff’s Complaint, arguing
insufficient process and lack of service of process. As a result, it argues that the Court lacks
personal jurisdiction. (ECF Nos. 10, 30.) Plaintiff responded to the motions but did not address
the issues raised in the motion to dismiss. (See ECF Nos. 19, 20.)
LEGAL STANDARD
A party may move for dismissal when service of process or process are improper. Fed.
R. Civ. P. 12(b)(4)–(5); see also Canaday v. Anthem Cos., 9 F.4th 392, 399 (6th Cir. 2021)
(“Before a federal court may exercise personal jurisdiction over a defendant, the procedural
requirement of service of summons must be satisfied.” (citation omitted)). Under Federal Rule
of Civil Procedure 4, a summons must
(A) name the court and the parties;
(B) be directed to the defendant;
(C) state the name and address of the plaintiff’s attorney or—if unrepresented—of
the plaintiff;
(D) state the time within which the defendant must appear and defend;
(E) notify the defendant that a failure to appear and defend will result in a default
judgment against the defendant for the relief demanded in the complaint;
(F) be signed by the clerk; and
(G) bear the court’s seal.
Fed. R. Civ. P. 4(a)(1). And process must include the summons and a copy of the complaint.
Fed. R. Civ. P. 4(c)(1).
Under federal law, a plaintiff may serve process on a defendant consistent with the laws
for service of the state in which service is made, or by
(A) delivering a copy of the summons and of the complaint to the individual
personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with
someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to
receive service of process.
Fed. R. Civ. P. 4(e)(2). In Tennessee, service of process by certified mail is permissible if
addressed to a person authorized to receive service and accompanied by a “return receipt . . .
signed by the defendant” or by the defendant’s designated recipient for service of process. Tenn.
R. Civ. P. 4.03(2) (“If the return receipt is signed by the defendant, or by person designated by
Rule 4.04 or by statute, service on the defendant shall be complete.”); Tenn. R. Civ. P. 4.04(3)
(identifying the proper individuals to receive service for partnerships or other unincorporated
associations); Tenn. R. Civ. P. 4.04(10) (requiring return receipt mail be addressed to the proper
individual identified in Rule 4.04(3)).
A magistrate judge may submit to a district court judge proposed findings of fact and a
recommended ruling on certain dispositive pretrial matters, including motions to dismiss. 28
U.S.C. § 636(b)(1)(A)–(B). On review, the district court “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate [judge].” 28 U.S.C. §
636(b)(1). And “[w]ithin 14 days after being served with a copy of the recommended
disposition, a party may serve and file specific written objections to the proposed findings and
recommendations.” Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1). If neither party
objects, then the district court reviews the R&R for clear error. Fed. R. Civ. P. 72(b) advisory
committee’s note. Plaintiff did not object to the R&R here.
DISPOSITION
Having reviewed the record here, the Court finds no clear error. In fact, the Court agrees
with Judge Claxton’s analysis and her conclusions in the R&R. The Court therefore ADOPTS
the R&R.
Plaintiff attempted service on University Place and MHA through mail. But the Federal
Rules of Civil Procedure do not allow service by mail. See Fed. R. Civ. P. 4(e). And Tennessee
law only permits service by mail if done by registered or certified mail. Tenn. R. Civ. P.
4.04(10). But according to the motions and affidavits, no one—much less the individual
authorized to accept service of process—at either University Place or MHA received or signed
the return receipt for service. And MHA claims service was only attempted via ordinary mail
anyway. Thus, service of process was insufficient.
And to avoid dismissal, Plaintiff must properly serve a defendant within ninety days of
filing the complaint. See Fed. R. Civ. P. 4(m). The court may allow a plaintiff more time to
effect service, but Plaintiff here has not moved to extend time to serve the defendants or shown
good cause for his initial failure to do so. (See ECF No. 19.) See also Fed. R. Civ. P. 4(m). And
more than ninety days have passed since Plaintiff filed the Complaint. (See ECF No. 1
(Complaint filed March 4, 2024).) Thus, Judge Claxton correctly recommended that the Court
dismiss the action because service of process was insufficient. Finding no clear error, the Court
ADOPTS Judge Claxton’s R&R.
CONCLUSION
Having reviewed Judge Claxton’s R&R for clear error and finding none, the Court
ADOPTS her recommendation and DISMISSES WITHOUT PREJUDICE Plaintiff’s claims
against University Place and MHA for lack of personal jurisdiction for insufficient service of
process.
SO ORDERED, this 2nd day of January, 2025.
s/Thomas L. Parker
THOMAS L. PARKER
UNITED STATES DISTRICT JUDGE