Robinson, III v. Wilcher et al, No. 4:2016cv00179 - Document 67 (S.D. Ga. 2019)
Court Description: ORDER denying 30 Motion for Reconsideration. Plaintiff shall have 60 days to perfect service on Defendant Moyse. Following effective service, Defendant shall have 30 days to consent to removal. Signed by Judge William T. Moore, Jr on 03/27/2019. (evk)
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Robinson, III v. Wilcher et al Doc. 67 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION EDDIE PRINCE ROBINSON, III, Plaintiff, CASE NO. CV416-179 V. ."T JOHN WILCHER, Chatham County ' 1 cz Cr,-y- Sheriff, in his official capacity; CORIZON HEALTH, OJ n: -R\ 4' ] INC.; JOSEPH MOYSE, M.D.; * 7 1 of // CARL FAULKS, M.D.; and JOHN -Tj ' 3D \3 •.J ; r- ~o DOES 1-99; 'o l xr C'-T • • Defendants. ORDER Before Ill's the Motion Court for following reasons, will once more serve Defendant is Plaintiff Reconsideration. provide Plaintiff Moyse. Plaintiff service § 1448. Following effective consent to Price {Doc. on with For have Defendant Moyse pursuant Defendant Moyse pursuant SHALL the The Court additional SHALL service Robinson, 30.) Plaintiff's motion is DENIED. perfect § 1446 (b) (2) (A), Eddie 60 time to days to to 28 U.S.C. to U.S.C. have 28 30 days to removal. BACKGROUND This deliberate he was case involves indifference incarcerated, serious to allegations Plaintiff's culminating in of medical the loss Defendants' needs of while sight in Dockets.Justia.com one eye. (Doc. 1, Attach. 1.) The filed in the Superior Court of action Chatham was originally County and was removed to this Court on June 30, 2016. {Doc. 1.) The issue of whether Defendant Moyse raised Plaintiff's in Defendant Moyse's was Motion Special properly served to Remand Appearance was first (Doc. Motion 11) to and Dismiss (Doc. 16). In his motion to remand, Plaintiff argued that this action Defendant consent to should Moyse be was removal, remanded to properly thus superior served rendering and court did removal not because timely non-unanimous between all defendants. (Doc. 11 at 1-2.) Plaintiff argues that Defendant Moyse was properly served on June 21, 2016 when a private process server served the complaint and summons on a 'VANE DOE Wife" at Defendant Moyse's place of residence at 416 Woodland Estates Drive, North Baldwin, NY 11510. (Doc. 11, Attach. 1 at 1.) Plaintiff relies on the process server's affidavit of suitable service to show that service was completed. (Doc. 11 at 6.) Defendants Wilcher, Corizon Health, and Faulks filed a joint response in opposition to Plaintiff's remand. (Doc. 17.) In their response. motion to Defendants Wilcher, Corizon Health, and Faulks argue that Defendant Moyse has not been properly served because the service that was allegedly conducted on June 21, 2016 occurred when neither Defendant Moyse nor Defendant Moyse's wife was home. (Id. at 2.) Thus, service was not perfected because the complaint and summons were not left with a resident of the home. (Id.) Defendants Wilcher, Corizon Health, and Faulks contend that, because Defendant Moyse has not been properly served, his consent was not required to remove the action and remand would be improper. (Id. at 3.) Additionally, the properly served Plaintiff and 2016 in Defendants counsel for which counsel provided an e-mail between Defendant Moyse dated July 26, for Moyse informed Defendant Plaintiff's counsel that service was improper and offered to by waive service if requested Plaintiff. (Doc. 17, Attach. 1 at 2.) In Defendant Moyse's Motion to Dismiss, he argues that he was not properly served because he was not personally served DOE' and Wife" service. his wife was not served, designation (Doc. 16, on Attach. the 1 despite the affidavit at 3.) of VANE suitable Defendant Moyse attached his own affidavit and the affidavit of his wife in support of his motion to dismiss. Defendant Moyse's wife claims that she did not speak with or see a process server on June 20, 2016 or June 21, 2016 and no one handed her any documents. (Id. at 16.) Defendant Moyse also argues that the process server's description of the Jane Doe Wife does not match his wife's appearance-his wife is an African American female with brown hair and golden highlights and is 5'4''. (Id. at 6.) The process server described the VANE DOE' Wife" as an African American female with black hair who was 5'9'' to 6'0'' tall. (Id.) On March 28, 2017, the Court entered an order denying both Plaintiff's Motion to Remand (Doc. 11) and Defendant Moyse's Motion to Dismiss (Doc. 16). (Doc. 29.) The Court gave Plaintiff sixty days to perfect service on Defendant Moyse and then, following effective service. Defendant Moyse would have 30 days to consent to removal. (Id. at 7.) Plaintiff filed a motion for reconsideration on April 24, 2017. (Doc. 30 at 1.) In his motion. Plaintiff argues that the Court did not rule on whether service was proper and that, if he complies with this Court's order to perfect service on Defendant Moyse, then he risks waiving the issue of improper removal on appeal. (Doc. 30 at 1-2.) Plaintiff also argues that if Defendant Moyse participates in this case, then ''the judgment Moyse only was Court's not review parties risk having an entire trial and to have the decision validly served." of docket. the reversed (Id. at Plaintiff perfected service on Defendant Moyse. 6.) because From still has Dr. this not ANALYSIS ^'In cases removed from state courts, the sufficiency of service of process attempted before removal is governed by state law." White v. Capio Partners, LLC, No. 1:15-CV120, 2015 (citing WL 5944943, at *2 (S.D. Ga. Rentz v. Swift Transp. Co., 185 Oct. F.R.D. 13, 2015) 693, 696 (M.D. Ga. 1998)). ''Once a case has been removed to federal court, federal law governs future attempts to serve process." Id. (citing 28 U.S.C. § 1448 and Fed. R. Civ. P. 81(c)(1)). In this case, service was attempted on June 21, 2016 and the case was removed to federal court on June 30, 2016 (Doc. 1). Accordingly, because the case was in state court when Plaintiff attempted service, the sufficiency of that service is governed by Georgia law. In pertinent part, O.C.G.A. § 9-11-4 (e) provides: (e) . . . Service shall be made by delivering a copy of the summons attached to a copy of the complaint as follows: (7) . . . personally, thereof or at to by the the defendant leaving copies defendant'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 complaint to an agent authorized by appointment or by law to receive service of process. O.C.G.A. § 9-11-4(e). Plaintiff argues that Defendant Moyse was properly served on June 21, 2016 through substituted service when a private process server served the complaint and summons on a 'VANE DOE Wife" at Defendant Moyse's place of residence at 416 (Doc. Woodland 11, Estates Attach. exclusively on 1 the Drive, at 1.) affidavit process server to show that served. of The Alberto affidavit Perez testifies of North Baldwin, Plaintiff almost service Defendant Moyse that 11510. relies suitable suitable NY was service "service by properly completed was the made by by delivering a true copy thereof to and leaving with 'JANE DOE' Wife a person of suitable age and discretion." (Doc. 30, Attach. individual 1 as at 3.) follows: The process "Approx server Age: described 51-65 Yrs., the Approx Weight: 131-160 Lbs., Approx Height: 5' 9'' - 6' 0'', Sex: Female, Approx Skin: Black, Approx Hair: Black." (Id.) The process server also included a narrative that he spoke to "JANE DOE" and, when he asked about whether the defendant was in active military service, he received a "negative reply and that the defendant always wore civilian clothes and no military uniform." (Id.) Defendant Gabrielle Moyse Louis, admits that reside at 416 he and Woodland his wife, Estates Marie Drive,
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