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Stafford v. Manley

United States District Court, W.D. Texas, Austin Division

June 27, 2019

BRIAN MANLEY and OFFICER NEEL #7806, Defendants.



         Before the Court is Defendant Officer Michael Neel's (“Neel”) motion to dismiss, (Dkt. 18), and responsive briefing. Having considered the parties' submissions, the record, and applicable law, the Court will deny the motion.

         I. BACKGROUND

         Plaintiff Tyrone Stafford (“Stafford”) brings this suit against Neel, a police officer employed by the Austin Police Department, under 42 U.S.C. § 1983 for violations of his constitutional rights. Stafford alleges that in September 2016, at 3:00 a.m., he pulled up to a red light at the intersection of MLK and Chicon on his way home. (Pl. Supp., Dkt. 6, at 1). Neel was stopped at the light. (Id.). According to Stafford, the intersection was on route from “the downtown district of Austin” where “there were several cars of Black people going the same route they usually take from leaving after the club, ” and there were “cars with amplified music and rims everywhere.” (Resp., Dkt. 19, at 2). Stafford alleges that when he pulled up to the red light, he “looked at Officer Neel, ” Neel looked back, and when the light turned green, Neel pulled him over. (Id.). Stafford claims Neel pulled him over merely because he had looked at him; Neel claims he pulled Stafford over because his music was too loud. (Id.; Mot., Dkt. 18, at 5-6). Stafford alleges that the traffic stop by Neel violated his constitutional rights. (Compl., Dkt. 1, at 8; Pl. Supp., Dkt. 6, at 1). Neel has moved to dismiss Stafford's claims against him under Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6). (Mot., Dkt. 18).


         A. Rule 12(b)(5) Motion

         A motion to dismiss pursuant to Rule 12(b)(5) turns on the legal sufficiency of the service of process. Quinn v. Miller, 470 Fed.Appx. 321, 323 (5th Cir. 2012). The serving party has the burden of demonstrating the validity of the service. Id. (citing Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992)). If the serving party fails to meet its burden, the district court may quash the service and dismiss without prejudice all claims against the improperly served defendant. See Gartin v. Par Pharm. Companies, Inc., 289 Fed.Appx. 688, 691 (5th Cir. 2008).

         Stafford is proceeding pro se in this case. On November 28, 2018, the Court ordered the Clerk of Court to reissue summons to Neel and directed the United States Marshals to serve him. (Dkt. 14). The Marshals attempted to served Neel by certified mail by delivering the summons to an individual identified as “Jimmy Petto (SP) Agent” on December 4. (Dkt. 17). Neel's counsel argues that “[c]ertified mail requires the signature of the Defendant to effectuate proper service, ” (Reply, Dkt. 23, at 1), and service was never completed because Neel did not sign the return receipt for the summons; Petto did. (Mot., Dkt. 18, at 2-3). She is incorrect.

         Rule 4(e) of the Federal Rules of Civil Procedure permits service upon an individual within a district of the United States by “delivering a copy of [the summons and complaint] to an agent authorized by appointment or by law to receive service of process.” Fed. R Civ. P. 4(e)(2)(C). Petto appears to be an agent authorized to receive service of process for Neel-he is designated as an “SP Agent.” (Return Receipt, Dkt. 17, at 1). Neel's counsel ignores this fact. Instead, she confusingly argues that “[t]he certified mail letters were received by an ‘unknown agent' at the Austin Police Department, presumably the person in charge of checking the mail on December 4, 2018. The return receipt was signed by Jimmy Petto, not Officer Neel-the named Defendant, as is required under Texas Rule of Civil Procedure 107(c).” (Mot, Dkt. 18, at 3). It is unclear why the signor is described as an “unknown agent, ” since the return receipt is clearly signed by Petto. (See Return Recipt, Dkt. 17). And Neel's counsel neglects to mention that Petto is designated as an “SP Agent.” (Id. at 1).

         Moreover, the single case on which Neel's counsel relies for her argument that only Neel could sign the return receipt announces no such requirement; rather, it directly contradicts it. In Ayika v. Sutton, 378 Fed.Appx. 432 (5th Cir. 2010), the Fifth Circuit upheld a district court's dismissal of a complaint without prejudice for lack of service of process. The court explained that service must comply with Federal Rule of Civil Procedure 4(e). Id. at 433. That rule provides four independent means of completing service:

(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 ...

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