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Sims v. Chatham-Sims

United States District Court, N.D. Texas, Dallas Division

July 26, 2019

STEVEN SHEROD SIMS, Plaintiff,
v.
ROSALINE CHATHAM-SIMS, et al., Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Defendant Juana S. Acosta's Amended Motion to Dismiss Plaintiff's Third Amended Complaint under Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6). Mot. (ECF No. 58). For the reasons stated below, the District Court should GRANT Defendant's motion and DISMISS Plaintiff's claims against her with prejudice.

         Background [1]

         Plaintiff filed his original Complaint on November 22, 2017. Compl. (ECF No. 3). Less than a month later, he filed an Amended Complaint. Am. Compl. (ECF No. 6). Ten months after that, Plaintiff filed a Second Amended Complaint without leave of court, causing Defendants to file a motion for clarification regarding the state of the pleadings. Sec. Am. Compl. (ECF No. 38); see Order (ECF No. 53). As a result, the Court granted Plaintiff one final opportunity to amend his complaint and plead his case. Order (ECF No. 47). In response, Plaintiff filed his Third Amended Complaint, the live pleading in this case, on December 17, 2018. Third Am. Compl. (ECF No. 49).

         Defendant Juana S. Acosta moves to dismiss Plaintiff's claims against her under Rules 12(b)(5) and 12(b)(6). Plaintiff asserts more than 23 claims against 42 Defendants in his Third Amended Complaint, and it is unclear exactly which claims he brings against Defendant Acosta. Other than within the list of “Parties, ” Acosta is only mentioned once in the Third Amended Complaint. Third Am. Compl. 7, 15. Her name appears in the “Facts” section, which provides, “Unknown Defendants and Juana Saloma Acosta conspired to defame Petitioner's character in order to create more work for themselves, thereby causing them to gain unjust enrichment.” Id. 15. Defendant's Motion is fully briefed and ripe for determination.

         Legal Standards and Analysis 12(b)(5)

         “Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). When a defendant has not been properly served, and service has not been waived, “a court ordinarily may not exercise power over a party the complaint names as defendant.” Id. (citing Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)). A motion to dismiss under 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) (per curiam). “Generally speaking, ‘[a]n objection under Rule 12(b)(4) concerns the form of the process rather than the manner or method of its service,' while a ‘Rule 12(b)(5) motion challenges the mode of delivery or the lack of delivery of the summons and complaint.'” Gartin v. Par Pharm. Cos., 289 Fed.Appx. 688, 691 n.3 (5th Cir. 2008) (per curiam) (quoting 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 3d § 1353). “Once the validity of service has been contested, the plaintiff bears the burden of establishing its validity.” In re Katrina Canal Breaches Litig., 309 Fed.Appx. 833, 835 (5th Cir. 2009) (per curiam) (citing Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992)). When the serving party fails to meet this burden, the district court may exercise its discretion to quash the service and “dismiss without prejudice all claims against the improperly-served defendants.” Lucky v. Haynes, 2013 WL 3054032, at *2 (N.D. Tex. June 18, 2013) (citing Gartin, 289 Fed.Appx. at 691-92). “Pro se status does not excuse a litigant's complete failure to effect service.” Sys. Signs Supplies v. U.S. Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990) (per curiam) (citing Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988) (“‘[T]he right of self-representation does not exempt a party from compliance with relevant rules of procedural and substantive law.'”)).

         Defendant Acosta moves to dismiss Plaintiff's Third Amended Complaint under Rule 12(b)(5). Acosta contends that Plaintiff failed to comply with Fed.R.Civ.P. 4(e) because “he personally mailed the Amended Complaint by certified mail” to her work address without a summons. Mot. 4. Further, Acosta asserts that Plaintiff never served on her a copy of his Third Amended Complaint, the live pleading. Id.

         Because the Court determines that Plaintiff's claims against Acosta should be dismissed under Rule 12(b)(6) for failure to state a claim, the Court need not reach Defendant's argument for dismissal under Rule 12(b)(5) for insufficiency of service of process. Roque v. AT & T's Inc., 2013 WL 3832692, at *1 n.2 (E.D. La. July 23, 2013) (citing Bova v. Pipefitters & Plumbers Local 60, AFL-CIO, 554 F.2d 226, 227-28 & n.7 (5th Cir. 1977) (concluding that, because plaintiff failed to state a claim on which relief could be granted, it was “unnecessary to decide whether several of the defendants were properly subjected to the personal jurisdiction of the district court”); Harris v. Holder, 885 F.Supp.2d 390, 396 n.4 (D.D.C. 2012) (declining to address defendants' motions to dismiss under Rules 12(b)(2), 12(b)(3), 12(b)(4), and 12(b)(5) because the complaint failed to state a claim on which relief could be granted)).

         12(b)(6)

         When deciding a 12(b)(6) motion for failure to state a claim, the court “accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quotation marks and citation omitted). To survive Defendant's Motion to Dismiss, therefore, Plaintiff's Complaint must contain sufficient factual matter to state a claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “To be plausible, the complaint's ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.'” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir. 2010) (quoting Twombly, 550 U.S. at 555). This pleading standard does not require “‘detailed factual allegations, '” but it does demand more than an unadorned accusation devoid of factual support. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). “[A] formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679. Where the facts do not permit the Court to infer more than the mere possibility of misconduct, the Complaint has stopped short of showing that Plaintiff is plausibly entitled to relief. Id. at 678 (citing Twombly, 550 U.S. at 557).

         In deciding a Rule 12(b)(6) motion, a court may not look beyond the pleadings. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). However, the pleadings, for the purpose of determining a Rule 12(b)(6) motion, include documents attached to the pleadings and to the motion to dismiss so long as they “are referred to in the plaintiff's complaint and are central to [his] claim.” Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)).

         I.

         Defendant Juana S. Acosta moves to dismiss Plaintiff's claims against her because Plaintiff “fail[s] to articulate a claim for which he is entitled to relief.” Mot. 10. While it is unclear exactly which of Plaintiff's more-than-23 claims he brings against Defendant Acosta, he only specifically asserts, “Unknown Defendants and Juana Saloma Acosta conspired to defame Petitioner's character in order to create more work for themselves, thereby causing them to gain unjust enrichment.” Third Am. Compl. 15. The Court, therefore, ...


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