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Cheeks v. Belmar

United States District Court, E.D. Missouri, Eastern Division

June 3, 2019

CLARA CHEEKS, Plaintiff,
v.
JON BELMAR, et al., Defendants.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on several motions. For the following reasons, defendant St. Louis County, Missouri's motion to quash service of process on defendants Jakob and Maloy in their official capacities pursuant to Rule 12(b)(5), Fed. R. Civ. P., will be granted; plaintiff's motions for default judgment against defendants Jakob and Maloy in their official capacities will be denied; and defendants Jakob and Maloy's official-capacity motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., will be granted.

         I. Procedural Background

         This action was filed on December 17, 2018. Named as defendants were Jon Belmar, individually and in his official capacity as St. Louis County, Missouri Chief of Police; Alex Malloy, [1]individually and in his official capacity as a St. Louis County police officer; Mark Jakob, individually and in his official capacity as a St. Louis County police officer; St. Louis County, Missouri; and the Missouri State Highway Patrol (“MSHP”).

         As relevant to the motions pending before the Court, plaintiff filed Notices of Intent to Use Process Server for service of summons and complaint on defendants Maloy and Jakob on December 17, 2018 (Docs. 4, 5). Attached to the Notices were summonses. The summons for defendant Maloy does not state whether he was being served in his official or individual capacity. (Doc. 4-1 at 1.) The information for service shown on the summons is: “Alex Malloy, St. Louis County Police Department, 7900 Forsyth Boulevard, St. Louis, Missouri.” (Doc. 4-1 at 2.) Similarly, the summons for defendant Jakob does not state whether he was being served in his official or individual capacity. (Doc. 5-1 at 1.) The information for service shown on the summons is: “Mark Jakob, St. Louis County Police Department, 7900 Forsyth Boulevard, St. Louis, Missouri.” (Doc. 5-1 at 2.)

         On March 19, 2019, the Court issued an Order stating the record did not reflect proof of summons and complaint on defendants Jakob and Maloy, and directing plaintiff to serve these defendants and file proof of service by April 18, 2019, or the claims against Jakob and Maloy would be dismissed without prejudice pursuant to Rule 4(m), Fed.R.Civ.P. (Doc. 37.)

         On March 26, 2019, the Court granted the MSHP's motion to dismiss plaintiff's claims against it, and granted plaintiff leave to file an amended complaint. (Docs. 38, 39.) Plaintiff filed her First Amended Complaint on April 4, 2019. (Doc. 40).

         Plaintiff filed a Notice of Intent to Use Process Server on April 10, 2019, which stated it was for service on defendants “Alex T. Maloy and Mark A. Jakob.” (Doc. 44) The attached summonses were directed to these defendants at their residential addresses. (Docs. 44-1, 44-2.) Because plaintiff had not filed returns of service from the process issued in December 2018 or otherwise responded to the Order of March 19, 2019, the record was unclear as to the status of service on Jakob and Maloy. As a result, the Court issued the following Docket Text Order on April 11, 2019:

IT IS HEREBY ORDERED that the Clerk of the Court will not process plaintiff's requests for issuance of summons (Doc. 44); plaintiff must file new requests for issuance of summons on defendants Jakob and Malloy that specify the capacity (individual or official) in which the defendants are being served. IT IS FURTHER ORDERED that plaintiff must file in the record the returns of service on defendants Jakob and Malloy pursuant to the summons issued on December 18, 2018 (Docs. 4, 5), using the appropriate civil filing event, i.e., Summons Returned Executed, or Summons Returned Unexecuted.

(DTO 45.)

         On April 11, 2019, in response to the Docket Text Order, plaintiff filed a return of service for defendant Jakob. (Doc. 47.) The Affidavit of Service states that summons and complaint were delivered on December 19, 2018 to “Amy Abkemer [sic] for Mark Jakob at St. Louis County Police Department, 7900 Forsyth Blvd, Saint Louis, MO.” (Doc. 47.) Plaintiff purported to file a return of service for defendant Maloy, but the Affidavit of Service plaintiff actually filed was a duplicate of defendant Jakob's return of service. (Doc. 46.) Thus, there is no return of service in the record for defendant Maloy from the December 19, 2018 service.

         Also on April 11, 2019, plaintiff filed a Notice of Intent to Use Process Server which stated it was for service on “Alex T. Malloy and Mark A. Jakob in their individual capacity, as they were served in their official capacity on 12-19-18, but have not been served in their individual capacity.” (Doc. 44) The information for service on Jakob shown on the summons is: “Mark A. Jakob, in his individual capacity, 1523 Heirloom Court, St. Louis, Missouri 63146.” (Doc. 50-1 at 1.) The information for service on Maloy shown on the summons is: “Alex T. Maloy, in his individual capacity, 4920 Milsmar Drive, St. Louis, Missouri 63128.” (Doc. 50-2 at 1.) On April 17, 2019, plaintiff filed returns of service with affidavits stating that Jakob in his individual capacity was personally served on April 13, 2019 (Doc. 51 at 2), and Maloy in his individual capacity was served by substitute service on Jeanne Maloy at defendant Maloy's place of abode on April 12, 2019 (Doc. 52 at 2).

         On April 22, 2019, defendants St. Louis County and Belmar filed a motion to quash the December 19, 2018 service of process on defendants Jakob and Maloy under Rule 12(b)(5), Fed.R.Civ.P. (Doc. 53), arguing that service was insufficient because neither Jakob nor Maloy was employed by St. Louis County at the time of service, and the service recipient, Amy Abkemeier, did not have authority to accept service for Jakob or Maloy. Plaintiff opposes the motion to quash and it is fully briefed.

         Also on April 22, 2019, plaintiff filed a motion for entry of default judgment against Maloy and Jakob in their official capacities (Doc. 55), seeking a default judgment in the amount of $14 million. Defendants St. Louis County and Maloy and Jakob in their official capacities oppose the motion. Plaintiff did not file a reply in support and the time to do so has passed, so the motion is ready for decision.

         On May 1, 2019, defendants Jakob and Maloy in their official capacities filed a motion to dismiss (Doc. 70), arguing that because the governmental entity that employed them, St. Louis County, is also a defendant in the case, plaintiff's official-capacity claims against them are redundant and should be dismissed. Plaintiff opposes the motion and it is fully briefed.

         On May 9, 2019, plaintiff filed a motion for entry of clerk's default judgment against Maloy and Jakob in their official capacities (Doc. 82), seeking a default judgment in the amount of $14 million dollars. Defendants Maloy and Jakob in their official capacities oppose the motion, plaintiff did not file a reply in support and the time to do so has passed, so it is ready for decision.

         II. Discussion

         A. Defendant St. Louis County's Motion to Quash the December 19, 2018 Service of Process on Defendants Jakob and Maloy

         1. The Parties' Arguments

         Defendant St. Louis County (the “County”) moves to quash the service of process on defendants Jakob and Maloy which was left with Amy Abkemeier, Executive Assistant to the St.

         Louis County Chief of Police, on December 19, 2018.[2] The County asserts that service is ineffective because neither Jakob nor Maloy was employed by the County at the time of service, and Ms. Abkemeier did not have authority to accept service for them. The motion is accompanied by the Affidavit of Ms. Abkemeier, which avers that she told the process server she did not know whether she had authority to accept service for Jakob or Maloy because they were no longer employed by St. Louis County, and that she would find out if she had such authority and let him know. (Doc. 53-1, Ex. A.) Ms. Abkemeier avers that she learned she did not have authority to accept service on Jakob or Maloy, and called the process server and left a voice mail message stating she did not have authority to accept service on Jakob and Maloy. (Id.)

         The motion to quash is also accompanied by a copy of an email dated January 9, 2019 from Associate St. Louis County Counselor Priscilla F. Gunn to plaintiff's counsel, Christopher Bent, which states in pertinent part:

Also, this will confirm that Amy Abkemeier did not have authority to accept service for Alex Maloy or Mark Jakob because neither Officer Maloy nor Jakob were employed by the county at the time of service. She told your process server that she was not confident she had authority to accept service on their behalf, and would let him know if she did not. I believe she did contact the process server. I also appreciate your courtesy in advising me that it will not be necessary for me to file a motion to quash service over Officers Maloy or Jakob at this time to avoid a default judgment against them. I will advise you as soon as I can who ...

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