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Moore. v. University of Kansas

United States District Court, D. Kansas

October 5, 2017

DAVID S. MOORE, Plaintiff,
v.
THE UNIVERSITY OF KANSAS, ET AL., Defendants.

          MEMORANDUM & ORDER

          JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE

         Plaintiff David Moore brings this action pro se, alleging that Defendants have violated his rights under the Americans with Disabilities Act and other federal statutes in connection with the termination of his employment at the University of Kansas.[1] On August 1, 2017, Defendants Jeffrey Vitter, Bernadette Gray-Little, Steven Warren, Joseph Heppert, the University of Kansas Center for Research, Inc., and the University of Kansas filed a Motion to Dismiss (Doc. 5) pursuant to Fed.R.Civ.P. 12(b)(5) and 12(b)(2), arguing that Plaintiff has failed to effectuate proper service of process and that this Court therefore lacks personal jurisdiction over Defendants. Although Plaintiff's opposition to Defendants' motion to dismiss was due on August 22, 2017 pursuant to the Court's Local Rule 6.1(d)(2), Plaintiff has filed no opposition to date. Having considered Defendants' motion to dismiss and the declarations attached thereto, the Court is prepared to rule. Because Defendants' motion is unopposed, and for the additional reasons set forth below, Defendants' motion is granted and this case is dismissed without prejudice.

         Pursuant to Fed.R.Civ.P. 12(b)(5), a defendant in a federal action may move to dismiss the plaintiff's claims when the plaintiff has failed to effectuate proper service of process.[2] Under Fed.R.Civ.P. 12(b)(2), a defendant may also move for dismissal on the basis of lack of personal jurisdiction.[3] Because a federal court lacks personal jurisdiction over a defendant if the plaintiff has failed to effectuate proper service, these two provisions of Fed.R.Civ.P. 12 may be asserted together as joint bases for dismissal.[4] When a defendant moves to dismiss on the basis of insufficient service of process, “the burden shifts to the plaintiff to make a prima facie showing that he served process properly.”[5] In ruling on a Rule 12(b)(5) motion to dismiss, the Court “may consider any ‘affidavits and other documentary evidence' submitted by the parties and must resolve any ‘factual doubt' in a plaintiff's favor.”[6] Because Plaintiff in this case proceeds pro se, the Court must construe his filings liberally and hold them to a less stringent standard than formal pleadings drafted by attorneys.[7] However, Plaintiff's pro se status does not excuse him from complying with federal and local rules.[8]

         Plaintiff filed his Complaint on June 22, 2017.[9] On June 23, 2017, the Court issued a summons to each of the Defendants.[10] For each individual person named as a defendant in this action-Defendants Vitter, Gray-Little, Warren, and Heppert-Plaintiff sent the summons, but not his Complaint, by certified mail to the individual's business addresses.[11] As to the remaining Defendants-the University of Kansas Center for Research, Inc. and the University of Kansas- Plaintiff sent the summons by certified mail to the entity's business address but, again, did not include a copy of his Complaint.[12]

         Fed. R. Civ. P. 4 governs what a plaintiff must do to properly serve process in a federal action.[13] “The personal service requirements of this rule ‘serve[ ] two purposes: notifying a defendant of the commencement of an action against him and providing a ritual that marks the court's assertion of jurisdiction over the lawsuit.'”[14] As relevant to this case, Rule 4 provides that “[a] summons must be served with a copy of the complaint.”[15] The rule further states that:

Unless federal law provides otherwise, an individual . . . may be served in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(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.[16]

         Thus, with regard to service upon individuals, Rule 4 provides that the plaintiff may serve the defendant or defendants either in accordance with the law of the state where the district court is located or according to one of the methods allowed by Rule 4(e)(2). Kansas law provides for service “by return receipt delivery, which is effected by certified mail. . . .”[17] With regard to service upon individuals, Kansas law requires that:

Service by return receipt delivery must be addressed to an individual at the individual's dwelling or usual place of abode . . . . If the sheriff, party, or party's attorney files a return of service stating that the return receipt delivery to the individual at the individual's dwelling or usual place of abode was refused or unclaimed and that a business address is known for the individual, the sheriff, party, or party's attorney may complete service by return receipt delivery, addressed to the individual at the individual's business address.[18]

         Finally, under Fed.R.Civ.P. 4(m), a plaintiff has 90 days from the date the complaint is filed to serve process on the defendant or defendants.[19] If the plaintiff fails to effectuate service within 90 days, “the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff ...


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