United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE.
Blogref brings suit against the Sedgwick County Sheriff
Department, alleging sex discrimination based on a hostile
work environment in violation of Title VII of the Civil
Rights Act (“Title VII”), 42 U.S.C. § 2000e,
retaliation in violation of Title VII, retaliation in
violation of the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601 et seq.,
negligent supervision and constructive discharge. This matter
is before the Court on Defendant's Motion To Dismiss
Plaintiff's Complaint Under Federal Rules Of Civil
Procedure 12(b)(5) and (6) (Doc. #6) filed October 8,
2018. Defendant seeks dismissal of plaintiff's claims
for, inter alia, insufficient service of process.
For reasons stated below, the Court finds that plaintiff has
not effectively served defendant but grants plaintiff until
June 3, 2019 to obtain sufficient service of
Pursuant to Rule 12(b)(5), Fed. R. Civ. P., the Court may
dismiss a complaint for insufficient service of process.
Examples of insufficient service include serving the wrong
person or serving an individual not authorized to accept
service for defendant. See 2 James Wm. Moore,
Moore's Federal Practice ¶ 12.33  at
12-54 (3d ed.1997). In opposing a motion to dismiss for
insufficient service of process, plaintiff bears the burden
to make a prima facie case that he has satisfied statutory
and due process requirements so as to permit the Court to
exercise personal jurisdiction over defendant. See
Bernard v. Husky Truck Stop, No. 93-2241-JWL, 1994 WL
171732, at *1 (D. Kan. Apr. 20, 1994), aff'd, 45
F.3d 439 (10th Cir. 1995). The parties may submit affidavits
and other documentary evidence for the Court's
consideration, and plaintiff is entitled to the benefit of
any factual doubt. See id.
August 31, 2018, plaintiff filed his complaint against the
Sedgwick County Sheriff Department. On September 17, 2018,
plaintiff served process on Laura Oblinger, defendant's
legal advisor. Executed Summons (Doc. #5) filed
September 18, 2018 at 2. On October 8, 2018, defendant filed
a motion to dismiss plaintiff's complaint on several
grounds, including insufficient service of process under Rule
12(b)(5), Fed. R. Civ. P.
Defendant asks the Court to dismiss plaintiff's claims
for insufficient service of process because plaintiff served
the summons and complaint on Laura Obligner, defendant's
legal advisor. Plaintiff replies that he is still within the
90-day time period for service of process and that the Court
cannot dismiss his complaint for insufficient service of
process. See Rule 4(m), Fed. R. Civ. P.
plaintiff may serve a state or local governmental agency (1)
“by delivering a copy of the summons and of the
complaint to its chief executive officer” or (2) by
serving the summons and complaint in the manner prescribed by
state law. Fed.R.Civ.P. 4(j)(2). Plaintiff did not comply
with the first alternative because he did not personally
deliver a copy of the summons or name the chief executive
officer of the Sedgwick County Sheriff Department. Plaintiff
also did not comply with service requirements under state
law. Under Kansas law, a plaintiff properly serves a county
“by serving one of the county commissioners, the county
clerk or the county treasurer.” Kan. Stat. Ann. §
60-304(d)(1). Under Kansas law, “[w]hen the statute
designates a particular officer to whom process must be
delivered and with whom it may be left, . . . no other
officer or person can be substituted in [her] place. The
designation of one particular officer upon whom service may
be made excludes all others.” Knight v. State of
Kansas, No. 89-2392-O, 1990 WL 154206, at *2 (D. Kan.
Sept. 6, 1990) (quoting Amy v. City of Watertown,
130 U.S. 301, 316-17 (1889)); see Oltremari v. Kan.
Social & Rehab. Serv., 871 F.Supp. 1331, 1353 (D.
Kan. 1994) (“Requiring personal service upon the chief
executive officer of a state agency assures that the person
in charge of the agency receives the service of process. . .
. [A]ctual notice of the suit does not confer personal
jurisdiction over the defendant.”).
noted, in response to defendant's motion to dismiss,
plaintiff asserts that he is still within the 90-day time
period for service of process. Plaintiff's Response
In Opposition To Defendant's Motion To Dismiss
Plaintiff's Complaint Under Federal Rules Of Civil
Procedure 12(b)(5) and (6) and Request For Leave To Amend The
Complaint (Doc. #8) filed October 26, 2018 at 3. While
this statement was accurate when plaintiff filed his
response, the 90-day period has now expired, and the record
does not reflect that he has since properly served defendant.
pursuant to Rule 12(b)(5), the Court quashes service and
dismisses without prejudice plaintiff's complaint against
the Sedgwick County Sheriff Department. See Gregory v.
United States Bankruptcy Court, 942 F.2d 1498, 1500
(10th Cir. 1991) (when court finds that service is
insufficient but curable, it generally should quash service
and give plaintiff an opportunity to re-serve defendant)
(quoting Pell v. Azar Nut Co., 711 F.2d 949, 950 n.2
(10th Cir. 1983)), cert. denied, 504 U.S. 941
(1992). On or before June 3, 2019, plaintiff
shall re-serve the Sedgwick County Sheriff Department
pursuant to Rule 4 of the Federal Rules of Civil Procedure
and file a return of service which confirms such service.
IS THEREFORE ORDERED that plaintiff's
Complaint (Doc. #1) filed August 31, 2018 is
DISMISSED without prejudice.
IS FURTHER ORDERED that Defendant's Motion
To Dismiss Plaintiff's Complaint Under Federal Rules Of
Civil Procedure 12(b)(5) and (6) (Doc. #6) filed October
8, 2018, which the Court ...