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Cheeks v. Belmar

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

June 21, 2019

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

          MEMORANDUM AND ORDER

          CHARLES A. SHAW UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on defendants Mike Broniec[1] and Paul Kempke's motion to dismiss plaintiff's First Amended Complaint under Rule 12(b)(2), Federal Rules of Civil Procedure, for lack of personal jurisdiction, Rules 12(b)(4) and (5), Fed R. Civ. P., insufficient service of process, and Rule 12(b)(6), Fed. R. Civ. P., failure to state a claim upon which relief can be granted. Plaintiff opposes the motion and it is fully briefed. For the following reasons, the Court will grant the motion as it pertains to insufficient process and insufficient service of process, pursuant to Rules 12(b)(4) and (5), but will deny the motion to dismiss for lack of personal jurisdiction and grant plaintiff additional time to properly serve defendants Broniec and Kempke. The Court does not reach the Rule 12(b)(6) motion.

         I. 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, 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”). On April 4, 2019, plaintiff filed a First Amended Complaint, naming three additional defendants in their individual capacities: Sergeant M. Broniec, Sergeant Paul Kempke, and Corporal B.A. Teague.

         On April 5, 2019, plaintiff filed Notices of Intent to Use Process Server for service of summons and complaint on defendants Broniec, Teague, and Kempke, and the Clerk of the Court issued the summonses. (Doc. 43). On May 6, 2019, plaintiff filed returns of service for defendants Broniec and Kempke. (Docs. 78, 79).

         In the instant motion to dismiss, defendants argue that service was insufficient because the private process server hand-delivered the summonses without attaching copies of the First Amended Complaint. In support of their argument, defendants submit an affidavit from Cynthia Scheidt, an employee of the Missouri State Highway Patrol, attesting she was served with summonses for both Broniec and Kempke which did not include copies of the First Amended Complaint. (Doc. 62-1). Defendants additionally argue that service was insufficient because the summonses were delivered to the Missouri State Highway Patrol in Jefferson City, Missouri when Broniec and Kempke are employed at the Troop C Headquarters in Weldon Spring, Missouri.

         In response, plaintiff filed the returns of service for Broniec and Kempke to support her position that each summons was properly served with attached copies of the First Amended Complaint. (Docs. 78 and 79). Plaintiff's counsel contends that he has “used the same process server for the past 10 years and this would be the first instance where a summons was served without an accompanying pleading” and that “[o]ut of an abundance of caution and without conceding defendants['] arguments, the process server has been instructed to serve the same named defendants once again, at plaintiff's expense[.]” (Doc. 80). Plaintiff did not address defendants' second argument regarding the allegedly improper service at the Missouri State Highway Patrol in Jefferson City, Missouri or whether Cynthia Scheidt is a proper agent to receive service of process for defendants Broniec and Kempke.

         II. Discussion

         Rule 4(e)(2) of the Federal Rules of Civil Procedure provides that an individual may be served:

[B]y delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.

Fed.R.Civ.P. 4(e)(2).

         Rule 4(e)(1), Fed.R.Civ.P., provides that an individual may be served in accordance with the law of the state in which the district court is located, under the rules for service of a summons on the defendant in an action brought in state court. Missouri Supreme Court Rule 54.13(b)(1) is substantially identical to Federal Rule of Civil Procedure 4(e)(2), and provides for service on an individual as follows:

(1) On Individual. Upon an individual, including an infant or incompetent person not having a legally appointed guardian, by delivering a copy of the summons and petition personally to the individual or by leaving a copy of the summons and petition at the individual's dwelling house or usual place of abode with some person of the individual's family over the age of fifteen years, or by delivering a copy of the ...

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