*

The Honorable David D. Dowd, Senior United States District Judge for the Northern District of

Ohio, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0326p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ALLEN KING and BRUCE KING,

Administrators of the Estate of Roger King,

 Plaintiffs-Appellants,

v.

ERIC TAYLOR, in his individual capacity as a

Kentucky State Trooper,

 Defendant-Appellee.

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No. 11-5917

Appeal from the United States District Court

for the Eastern District of Kentucky at Lexington.

No. 5:10-cv-96—Karl S. Forester, District Judge.

Argued: July 17, 2012

Decided and Filed: September 12, 2012 

Before: SUTTON and GRIFFIN, Circuit Judges; and DOWD, District Judge.*

_________________

COUNSEL

ARGUED: Hans G. Poppe, THE POPPE LAW FIRM, Louisville, Kentucky, for

Appellants. Morgain M. Sprague, KENTUCKY STATE POLICE, Frankfort, Kentucky,

for Appellee. ON BRIEF: Garry R. Adams, CLAY FREDERICK ADAMS PLC,

Louisville, Kentucky, for Appellants. Christian Matthew Feltner, KENTUCKY STATE

POLICE, Frankfort, Kentucky, for Appellee.

1
No. 11-5917 King, et al. v. Taylor Page 2

_________________

OPINION

_________________

GRIFFIN, Circuit Judge. This case involves the shooting death of Roger King

by Kentucky State Trooper Eric Taylor. Taylor, along with officers from the Sheriff’s

Office for Boyle County, Kentucky, were attempting to arrest King at his home. Taylor

alleges that he shot and killed King in self-defense and/or in defense of his fellow

officers. The administrators of King’s estate brought this action, asserting claims against

Taylor under the Fourth Amendment and Kentucky state law. The district court

dismissed the action for lack of proper service and, alternatively, entered summary

judgment in Taylor’s favor on the merits. Because these rulings were error requiring

reversal, we vacate the judgment of the district court and remand for further proceedings.

I.

On November 25, 2009, the Sheriff’s Office for Boyle County, Kentucky,

received an arrest warrant and emergency protective order for Roger King. King had

allegedly entered onto his ex-wife’s property, pulled a gun from his pocket, pointed it

at his ex-wife’s face, and said “I’m going to kill someone today.” The sheriff was

commanded to arrest King on felony and misdemeanor charges stemming from the

altercation. The protective order prohibited King from coming within 1,000 feet of his

ex-wife or her household and ordered him to appear in court the following week.

Sheriff’s deputy Jody Adams was tasked with executing the warrant and serving

the protective order. The sheriff told Adams that he saw King the week before, and that

King had been acting “strange [and] violent” toward him. He told Adams to obtain the

assistance of the Kentucky State Police. Adams was aware that King, years earlier, had

been involved in an incident with the Kentucky State Police in which King allegedly

fired shots in the vicinity of a state trooper who entered onto King’s property. King was

eventually arrested for his actions.
No. 11-5917 King, et al. v. Taylor Page 3

Adams recruited fellow sheriff’s deputy Alfred Isaacs to assist in the arrest.

Isaacs contacted Kentucky State Trooper Frank Thornberry directly, who advised that

he was off for the night, and that Isaacs should contact Trooper Eric Taylor, which Isaacs

did. Adams, too, contacted the Kentucky State Police dispatch office to ask for

assistance. Taylor was dispatched. Taylor was informed that the situation could become

dangerous in light of the allegations and was told about the earlier incident between King

and the state trooper. While speaking with the dispatch operator, Taylor made the

following statements with respect to King: “So, my thought . . . was, there shouldn’t be

no [Emergency Protective Order] on that guy. And [Frank Thornberry] said, well, what

do you mean? I said, you don’t serve an EPO on dead people. You know?”; “either

[King will] be home (a); (b) he’ll be home and come out shooting, you know; or (c) he’ll

come out, and—yeah, and one of us will have to kill—shoot him.”; “If I did [shoot him],

I don’t care to be off. I’ll be off until after the first of the year.”; and “Well, if you don’t

get a hold of me [later tonight], then it may be I’m busy shooting bullets or something.”

Taylor, Adams, Isaacs, and three other deputies from Boyle County arrived at

King’s home around 9:00 p.m. and aimed their headlamps and spotlights towards the

front of the home. Adams approached and knocked on the front door, but no one

answered. Isaacs joined Adams, and the two went to a side door and knocked, but again,

no answer. Isaacs went to the back of the home, and Taylor covered him with his rifle.

Through two glass doors, Isaacs saw King lying on his couch in his underwear, with a

blanket partially covering him. The couch faced the glass doors. Taylor signaled to

Adams, and Adams joined Taylor and Isaacs on the back porch.

Isaacs and Adams approached the window; Taylor provided cover. Both men

knocked on the glass door and announced their identities. Isaacs pressed the badge on

his uniform sleeve up to the glass to show King he was a law enforcement officer.

Taylor stood to the right of Isaacs and Adams, holding his rifle with the stock against the

inside of his shoulder and the muzzle lowered just slightly, ready to aim and shoot if

necessary. According to Taylor, King sat up, turned toward the officers and gave a

“look of . . . contempt.” King then turned away from the window. Taylor saw King’s
No. 11-5917 King, et al. v. Taylor Page 4

back and both of his elbows. King turned back toward the officers, and Taylor saw

King’s right hand come up with a gun and point it directly at the officers. Taylor raised

his rifle and shot at King’s midline. As discussed below, forensic evidence and expert

testimony tell a different story.

The window shattered, and Adams, Isaacs, and Taylor fled for cover. It was later

discovered that Taylor’s bullet had struck King in the face, killing him instantly. A

medical examiner for the Commonwealth of Kentucky performed an autopsy and

determined that King died from a “projectile perforation of [his] medulla oblongata.”

Plaintiffs are the administrators of King’s estate. They filed this action against

the Commonwealth of Kentucky and Eric Taylor, in both his individual and official

capacities. Suing under 42 U.S.C. § 1983, they claimed that Taylor’s use of deadly force

against King was unwarranted and thereby violated King’s rights under the Fourth and

Fourteenth Amendments. They also asserted that Taylor assaulted, battered, and acted

negligently toward King by shooting him. Finally, they alleged that the Commonwealth

was vicariously liable for Taylor’s negligence and directly liable for failing to train him

in the proper use of force.

Early in the proceedings, the Commonwealth and Taylor, in his official capacity,

moved to dismiss all claims against them on the basis of sovereign immunity. Plaintiffs

responded by voluntarily dismissing these claims without prejudice. See Fed. R. Civ.

P. 41(a)(1)(A)(i). The same day he moved to dismiss the claims in his official capacity,

Taylor answered the complaint in his individual capacity. He asserted in his answer that

the complaint should be dismissed, among other reasons, because of insufficient service

of process.

Nearly a year after he answered the complaint, Taylor filed a motion asking the

district court to dismiss the action for insufficient service of process, see Fed. R. Civ. P.

12(b)(5), (i), and, alternatively, to enter summary judgment on the merits in his favor,

see Fed. R. Civ. P. 56(a). Plaintiffs opposed the motion. They did not dispute that they

improperly served Taylor, but argued that Taylor had waived his challenge to service.

They also argued that, even if Taylor’s challenge were preserved, the court should
No. 11-5917 King, et al. v. Taylor Page 5

extend the time to serve him under Federal Rule of Civil Procedure 4(m), even though

plaintiffs could not show good cause for their failure to timely serve him. See, e.g.,

Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340–41 (7th Cir. 1996).

Plaintiffs argued that dismissing the complaint instead of giving them more time to

properly serve Taylor would be draconian, as a subsequent action would be barred by

the statute of limitations. The district court ruled that Taylor had not waived his defense

and declined to exercise its discretion to extend the time for service. It also ruled that

Taylor was entitled to summary judgment on the merits.

Plaintiffs timely appealed. 

II.

We must first consider the district court’s ruling on Taylor’s service defense, for

without proper service of process, consent, waiver, or forfeiture, a court may not exercise

personal jurisdiction over a named defendant. Murphy Bros., Inc. v. Michetti Pipe

Stringing, Inc., 526 U.S. 344, 350 (1999); see Omni Capital Int’l, Ltd. v. Rudolf Wolff

& Co., Ltd., 484 U.S. 97, 104 (1987). And in the absence of personal jurisdiction, a

federal court is “powerless to proceed to an adjudication.” Ruhrgas AG v. Marathon Oil

Co., 526 U.S. 574, 584 (1999) (internal quotation marks omitted).

Plaintiffs chose to sue Taylor in his official and individual capacities. A

summons was addressed to Taylor, “[care of] Morgain Sprague,” an attorney with the

Office of the Kentucky State Police Legal Counsel who later represented the

Commonwealth and Taylor in both capacities. The summons and a copy of the

complaint were mailed to Sprague and signed for by someone in her office. Although

this method of service was apparently sufficient to confer personal jurisdiction over

Taylor in his official capacity—service was never challenged—it did not confer

jurisdiction over him in his individual capacity. See Ecclesiastical Order of the Ism of

Am, Inc. v. Chasin, 845 F.2d 113, 116 (6th Cir. 1988) (per curiam). Taylor’s full

awareness that he had been sued makes no legal difference to the question whether he

was properly served. See Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir.
No. 11-5917 King, et al. v. Taylor Page 6

1

The Federal Rules of Civil Procedure provide a very specific method for apprising a defendant

of a lawsuit and conferring a court’s jurisdiction over him. See Fed. R. Civ. P. 4. That method was not

followed here. We do not have the option of looking past that failure, even though it was harmless in light

of Taylor’s full awareness of the lawsuit.

Separately, Judge Griffin notes that strict enforcement of Rule 4’s technical requirements for

service of process, despite the absence of any prejudice to the defendant from non-compliance, is

nonsensical and needlessly elevates form over substance. Other jurisdictions have adopted more

progressive, harmless-error-type rules in this context. See, e.g., Mich. Ct. R. 2.105(J)(3) (“An action shall

not be dismissed for improper service of process unless the service failed to inform the defendant of the

action within the time provided in these rules for service.”); see also, e.g., Mich. Ct. R. 1.105 (“These rules

are to be construed to secure the just, speedy, and economical determination of every action and to avoid

the consequences of error that does not affect the substantial rights of the parties.” (emphasis added)).

Judge Griffin encourages the Advisory Committee on Civil Rules to adopt a rule, similar to Michigan’s,

that avoids the wasted resources that litigating harmless errors in service tends to create. Until then,

however, courts must apply the service rules as they exist today. Cf. Tuke v. United States, 76 F.3d 155,

157 (7th Cir. 1996) (“The Supreme Court insists that federal judges carry out the rules of procedure,

whether or not those rules strike the judges as optimal.”). Although Rule 4(m), as most of our sister

circuits have construed it, permits a district court in its discretion to look past earlier service blunders and

give the plaintiff another opportunity to effect proper service, see Panaras, 94 F.3d at 340–41, the lack of

prejudice to the defendant is only one factor among many that a court may consider in deciding whether

or not to do so. See Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir. 1998). Judge Griffin

believes that a harmless-error rule that focuses solely on the prejudice suffered by a defendant due to

technical defects in service would go further to avoid unwarranted dismissals and thereby conserve judicial

resources and promote confidence in our judicial system.

1991).1 Plaintiffs concede their failure to properly serve Taylor. They seek to avoid the

consequences of that failure by arguing that Taylor waived his ability to challenge the

service in three different ways. We address each theory separately.

A.

First, plaintiffs contend that Taylor waived his defense by not including it in his

first motion to dismiss. By operation of the Federal Rules of Civil Procedure, a

defendant who files a motion under Rule 12, yet fails to raise in that motion the defense

of insufficient service of process, forever “waives” that defense. Fed. R. Civ. P.

12(b)(5), (g)(2), (h)(1)(A). Therefore, if Taylor filed a motion under Rule 12, but never

argued therein that service was defective, he is barred from raising the issue later, and

plaintiffs’ first theory of waiver must be sustained.

Taylor did, in fact, make a Rule 12 motion and omitted from it a challenge to the

service of process. However, the motion was made expressly in Taylor’s official

capacity. Therefore, it was effectively the Commonwealth’s motion. See Kentucky v.

Graham, 473 U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in all respects other

than name, to be treated as a suit against the entity [of which a governmental officer is
No. 11-5917 King, et al. v. Taylor Page 7

an agent].”). Moreover, the substance of the motion made clear that it was filed only in

Taylor’s official capacity, for it sought dismissal of all claims against him on the basis

of sovereign immunity, a defense that applies to persons only when sued for damages

in their official capacity. Pucci v. Nineteenth Dist. Ct., 628 F.3d 752, 765 (6th Cir.

2010). Because Taylor, in his individual capacity, did not initially file a motion to

dismiss, he was permitted under Rule 12(h) to preserve his service defense by including

it in his answer, which he did. See Fed. R. Civ. P. 12(h)(1)(B).

B.

Second, plaintiffs argue that Taylor failed to preserve his challenge to service by

not pleading it in his answer with sufficient specificity. This theory fares no better. As

his ninth stated defense, Taylor asserted: “The Complaint should be dismissed due to

insufficient service of process.” That is adequate to preserve the defense under Rule

12(h)(1)(B)(ii). See Mattel, Inc. v. Barbie-Club.com, 310 F.3d 293, 307 (2d Cir. 2002)

(“[T]o preserve the defense of lack of personal jurisdiction, a defendant need only state

the defense in its first responsive filing and need not articulate the defense with any

rigorous degree of specificity.”); compare United States v. Ziegler Bolt & Parts Co.,

111 F.3d 878, 880, 882 (Fed. Cir. 1997) (defendant’s assertion in his answer that the

complaint was “barred because of insufficient service of process” was adequate to

preserve the defense at the outset); and Holzsager v. Valley Hosp., 646 F.2d 792, 795–96

(2d Cir. 1981) (answer’s assertion that the district court “lacked jurisdiction over the

person of the defendant” was sufficient under Rule 12(h)(1) to preserve a personaljurisdiction defense based on constitutional concerns); with Santos v. State Farm Fire

& Cas. Co., 902 F.2d 1092, 1095–96 (2d Cir. 1990) (statement in answer that the court

lacked personal jurisdiction over the defendant did not preserve the separate defense of

insufficient service of process).

An answer is no place to lay out the detailed basis for a Rule 12(b) defense. Cf.

Johnson Assocs. Corp. v. HL Operating Corp., 680 F.3d 713, 718 (6th Cir. 2012) (“The

filing of an answer is, after all, the main opportunity for a defendant to give notice of

potentially dispositive issues to the plaintiff.” (emphasis added)). Details and arguments
No. 11-5917 King, et al. v. Taylor Page 8

2

Technically speaking, it is improper to raise a challenge to service of process in a motion for

summary judgment because the defense “involves a matter in abatement and does not go to the merits of

the action[.]” United States v. Marple Cmty. Record, Inc., 335 F. Supp. 95, 101 (E.D. Pa. 1971).

Nevertheless, when the defense has been preserved in an answer and is later raised in a pre-trial motion,

a court will look past the label chosen by the movant and treat the motion as a request for a ruling on the

defense made under former Rule 12(d), restyled in 2007 as Rule 12(i). See id.; see also 5B Wright &

Miller, supra, § 1353, at 340; cf. Mich. Surgery Inv., LLC v. Arman, 627 F.3d 572, 578 (6th Cir. 2010)

(Batchelder, C.J., concurring) (“The physicians’ motion was not a motion for summary judgment,

regardless of the title chosen by the physicians[.]”); cf. also Rauch v. Day & Night Mfg. Corp., 576 F.2d

697, 702 (6th Cir. 1978) (considering the substance of a motion, rather than its label, to determine whether

it was one to dismiss or one for summary judgment).

are what motions are for. Rule 12(h)(1)(B) appears to recognize this point, for it requires

a defendant to either (i) “make” an insufficient-service defense in a pre-answer motion

or (ii) simply “include” the defense in the answer. The rule gives a defendant the option

to preserve the defense in either manner, provided he has not already filed a motion

under Rule 12 that did not assert the defense. Requiring motion-like argument in an

answer would eliminate the option the rule provides.

Certainly a defendant must develop an argument with facts and legal analysis

once he affirmatively challenges a plaintiff’s attempts at service. Raising the challenge

in a perfunctory fashion will not do. See O’Brien v. R.J. O’Brien & Assocs., Inc.,

998 F.2d 1394, 1400 (7th Cir. 1993); Photolab Corp. v. Simplex Specialty Co., 806 F.2d

807, 810 (8th Cir. 1986); see also 5B Charles A. Wright & Arthur R. Miller, Federal

Practice & Procedure § 1353, at 341 (3d ed. 2004) (“The objection to insufficiency of

process or its service should point out specifically in what manner the plaintiff has failed

to satisfy the requirements of the service provision that was utilized.”). But Taylor did

that here in his motion for summary judgment. That was sufficient under the Rules.2

Also, that the defense was listed along with a number of others that, according

to plaintiffs, are “seen as a matter of course in nearly every answer[,]” cannot render the

defense any less properly preserved under Rule 12(h)(1). Plaintiffs’ counsel had a duty

to study Taylor’s answer when it was filed. Had he done so, he would have reviewed

his service efforts and recognized them to be unsuccessful. If the defect in service were

not immediately apparent to counsel, he could have served Taylor with interrogatories

requesting the factual and legal bases for the defense. Or, he could have moved to strike

the defense as insufficiently pled, see Fed. R. Civ. P. 12(f), which undoubtedly would
No. 11-5917 King, et al. v. Taylor Page 9

3

While proper to speak in terms of “waiver” when discussing a defendant’s failure to preserve

a defense in the way Rule 12(h)(1) requires (since the rule itself employs the term), when considering

whether a defendant has unintentionally lost the defense through his delay and participation in the

litigation, the issue is more properly considered one of “forfeiture.” See Hamilton, 197 F.3d at 61; see also

United States v. Olano, 507 U.S. 725, 733 (1993) (noting that “waiver is the intentional relinquishment

or abandonment of a known right” (citation and internal quotation marks omitted)).

have brought the error to the fore, or asked Taylor to waive service under Civil Rule

4(d), which, had Taylor agreed, would have mooted the issue. Taylor satisfied Rule

12(h)(1).

C.

We find plaintiffs’ third theory meritorious. They argue that Taylor forfeited his

service defense through his extensive participation in the litigation. We agree. Even

where a defendant properly preserves a Rule 12(b) defense by including it in an answer,

he may forfeit3

 the right to seek a ruling on the defense at a later juncture through his

conduct during the litigation. See Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 60 (2d

Cir. 1999); see also Creech v. Roberts, 908 F.2d 75, 84 (6th Cir. 1990) (Guy, J.,

dissenting) (noting that Rule 12(h) “sets only the outer limits of waiver; it does not

preclude waiver by implication.” (citation and internal quotation marks omitted)),

overruled on state-law grounds by Goldstein v. Christiansen, 638 N.E.2d 541 (Ohio

1994). Asserting a Rule 12(b) defense in an answer “do[es] not preserve the defense in

perpetuity.” Burton v. N. Dutchess Hosp., 106 F.R.D. 477, 481 (S.D.N.Y. 1985). A

defendant is “required at some point to raise the issue by motion for the court’s

determination.” Id. Waiting too long to do so can forfeit the defense.

The majority of cases involving forfeiture of a defense listed in Rule 12(b)

involve a personal-jurisdiction defense, not a service defense. The two defenses, though

related, involve distinct concepts. See Omni Capital Int’l, 484 U.S. at 104 (“Service of

summons is the procedure by which a court having venue and jurisdiction of the subject

matter of the suit asserts jurisdiction over the person of the party served.” (quotation

marks omitted)); see also Fed. R. Civ. P. 12(b) (listing the defenses separately);

5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1353, at 338

(3d ed. 2004) (“Although the questions of personal jurisdiction and service of process
No. 11-5917 King, et al. v. Taylor Page 10

4

The Second Circuit put it this way:

[T]his is not a case where a defendant is contesting personal jurisdiction on the ground

that [long-arm] jurisdiction is not available. We would be slower to find waiver by a

defendant wishing to contest whether it was obliged to defend in a distant court. But

here amenability of Teledyne Industries, Inc. to the jurisdiction of the Western District

is clear, and defendant is complaining only about a defect in the form of service, one

that could have been readily cured during the limitations period if defendant had

promptly complained.

Datskow, 899 F.2d at 1303; see Hamilton, 197 F.3d at 60 (“Since Atlas’s jurisdictional defense challenges

the application of New York’s long-arm statute, we approach the waiver issue with the enhanced caution

that Datskow contemplated.”).

are closely interrelated, service of process is merely the means by which a federal court

gives notice to the defendant and asserts jurisdiction over him; the actual existence of

personal jurisdiction should be challenged by a Rule 12(b)(2) motion”). That is why

raising a challenge to one will not automatically raise (or preserve) a challenge to the

other. See Santos, 902 F.2d at 1095.

We recently clarified the test for finding forfeiture of a personal-jurisdiction

defense through conduct: we ask whether a defendant’s conduct prior to raising the

defense has given the plaintiff “a reasonable expectation” that the defendant will defend

the suit on the merits or whether the defendant has caused the court to “go to some effort

that would be wasted if personal jurisdiction is later found lacking.” Gerber v. Riordan,

649 F.3d 514, 519 (6th Cir. 2011) (quoting Mobile Anesthesiologists Chi., LLC v.

Anesthesia Assocs. of Hous. Metroplex, P.A., 623 F.3d 440, 443 (7th Cir. 2010)). We

consider all of the relevant circumstances. Hamilton, 197 F.3d at 61. Recognizing that

service of process is simply the means by which a defendant receives notice of an action

and is formally brought within a court’s jurisdiction, whereas personal jurisdiction

concerns the fairness of requiring a defendant to appear and defend in a distant forum,

we agree with the Second Circuit that, as between the two defenses, it is relatively easier

to find forfeiture of a service defense. See id., 197 F.3d at 60; Datskow v. Teledyne, Inc.,

899 F.2d 1298, 1303 (2d Cir. 1990).4

We review a district court’s ruling on forfeiture for an abuse of discretion. See

Ziegler Bolt & Parts, 111 F.3d at 882; accord Lechoslaw v. Bank of Am., N.A., 618 F.3d

49, 55–56 (1st Cir. 2010); Melton v. Wiley, 262 F. App’x 921, 923 n.5 (11th Cir. 2008)
No. 11-5917 King, et al. v. Taylor Page 11

5

Gerber does not require de novo review of forfeiture rulings. There, we considered anew

whether the defendant had forfeited its personal-jurisdiction defense through its conduct. 649 F.3d at

517–20. But we presumably did so because the plaintiff’s claim of forfeiture was raised for the first time

on appeal, which precluded review of any exercise of discretion. See Gerber v. Riordan, No. 3:06-cv01525, 2009 WL 1505572 (N.D. Ohio May 28, 2009) (not addressing forfeiture allegation). Moreover,

because the defendant never appeared or filed a brief in the appellate proceedings, there was no contention

either that the plaintiff itself had forfeited its argument on forfeiture by not raising it below or that the

matter should be remanded so the district court could exercise its discretion. See Ford v. Cnty. of Grand

Traverse, 535 F.3d 483, 490 (6th Cir. 2008). Gerber did not establish the review standard for forfeiture

rulings. Cf. United States v. Lucido, 612 F.3d 871, 876 (6th Cir. 2010) (“Cases implicating issues that

‘merely lurk in the record, neither brought to the attention of the court nor ruled upon,’ do not establish

binding precedent on the unexamined point.” (citation omitted)).

6

Civil Rule 26(f) contemplates a conference between the parties in which consideration of “the

nature and basis of their claims and defenses,” among other things, are considered. Fed. R. Civ. P. 26(f)(1)

(emphasis added).

(per curiam); Hamilton, 197 F.3d at 60; see also Chambers v. NASCO, Inc., 501 U.S. 32,

43–46 (1991) (discussing the inherent powers of federal courts to govern conduct in

actions pending before them); cf. Mickowski v. Visi-Trak Worldwide, LLC, 415 F.3d 501,

506 (6th Cir. 2005) (district court’s allowance of an untimely affirmative defense is

reviewed for an abuse of discretion); Smith v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997)

(same).5 “An abuse of discretion occurs if the district court relies on clearly erroneous

findings of fact, applies the wrong legal standard, misapplies the correct legal standard

when reaching a conclusion, or makes a clear error of judgment.” In re Whirlpool Corp.

Front-Loading Washer Prods. Liability Litig., 678 F.3d 409, 416 (6th Cir. 2012). Such

review suggests “a range of plausible assessments” about the question considered. Ohio

ex rel. Skaggs v. Brunner, 629 F.3d 527, 532 (6th Cir. 2010). Though it is certainly

deferential, “abuse of discretion review is not the same thing as a rubber stamp[.]”

Dunphy v. McKee, 134 F.3d 1297, 1300 (7th Cir. 1998).

Despite the absence of any legal error or clearly erroneous findings of fact, we

conclude that Taylor’s forfeiture in this case was so clear that the district court abused

its discretion in ruling otherwise. After including the service defense in his answer,

Taylor was completely silent about it until the summary judgment stage. During that

span of silence, Taylor, solely in his individual capacity, participated extensively in the

litigation for over a year in the following ways:

• Meeting with plaintiffs’ counsel and then filing with the district

court a joint report under Civil Rule 26(f).6

 
No. 11-5917 King, et al. v. Taylor Page 12

7

The written appearance filed by Taylor’s counsel one month before Taylor moved for dismissal

on the basis of lack of service does not constitute forfeiture. See Friedman v. Estate of Presser, 929 F.2d

1151, 1157 n.7 (6th Cir. 1991) (noting that an appearance by counsel, filed after properly raising lack of

proper service in the first responsive pleading, did not waive the defense). Insofar as some of our more

recent cases might suggest otherwise, see, e.g., Gerber, 649 F.3d at 520, they must yield to Friedman. See

United States v. Simpson, 520 F.3d 531, 539 (6th Cir. 2008) (noting that the earlier of two conflicting panel

holdings controls).

• Voluntarily participating in full discovery on the merits,

including making initial disclosures under Rule 26(a), responding

to written discovery requests from plaintiffs, giving his

deposition, having counsel attend the depositions of sheriff’s

deputies Alfred Isaacs and Jody Adams, and retaining Dr.

Gregory Davis as an expert witness and defending his deposition.

• Moving to amend the scheduling order to extend the deadline for

expert witness disclosures. 

• Joining plaintiffs’ request to extend discovery by sixty days to

allow plaintiffs time to depose Taylor and others, and filing a

status report urging the court to sustain the parties’ joint motion

for an extension. 

• Attending a status conference to discuss the progress of the action

and the justification for extending the pretrial deadlines.

Such voluntary, active, and extensive participation in the litigation indisputably

gave plaintiffs a “reasonable expectation that [Taylor would] defend the suit on the

merits.” Gerber, 649 F.3d at 519. In addition, Taylor’s decision to wait until the

summary judgment stage to seek a ruling on his service defense caused the district court

to go to at least “some effort that would be wasted if [proper service of process] is later

found lacking.” Id. He therefore forfeited his service defense.7

 The district court’s

ruling to the contrary fell outside the “range of plausible assessments” on the matter and

was thus an abuse of discretion. Brunner, 629 F.3d at 532; cf. Datskow, 899 F.2d at

1301, 1303 (finding that the defendant forfeited its defense of improper service by

including the defense in its answer and then waiting four months to raise the defense in

a motion, before which time it attended a scheduling conference where the defense was

never mentioned).
No. 11-5917 King, et al. v. Taylor Page 13

At oral argument, Taylor’s counsel admitted that for “tactical reasons” she did

not bring a motion to dismiss at an earlier stage in the litigation. Counsel intentionally

waited until after the statute of limitations had run before filing her motion. In assessing

whether Taylor forfeited his defective-service defense through his active and extensive

participation in the litigation, the deliberativeness of his conduct, for gamesmanship

purposes, weighs against Taylor.

In finding forfeiture here, we do not imply that a defendant who believes he has

been improperly served and insists upon proper service must raise the issue in a motion

at the earliest possible moment upon pain of forfeiture. Such a rule would contravene

Rule 12(h). And, given that a plaintiff has 120 days to serve a defendant, see Fed. R. Civ.

P. 4(c)(1), (m), a motion to dismiss on the basis of improper service made during the

period for service may properly be denied as premature. See McGinnis v. Shalala, 2

F.3d 548, 551 (5th Cir. 1993) (per curiam); see also Henderson v. United States, 517

U.S. 654, 661 (1996) (“[Rule 4(m)’s] 120-day provision operates not as an outer limit

subject to reduction, but as an irreducible allowance.”). Taylor, however, waited until

well after the 120-day period expired to press his service defense in a motion and, in the

meantime, took substantial steps to defend the case on the merits. Doing so forfeited his

defense. We turn to the merits.

III.

The district court granted Taylor summary judgment on his defenses to plaintiffs’

claims of excessive force under the Fourth Amendment, as well as assault, battery, and

negligence under Kentucky law. See Fed. R. Civ. P. 56(a). We review that decision de

novo. Longaberger Co. v. Kolt, 586 F.3d 459, 465 (6th Cir. 2009). In so doing, we view

the facts in the light most favorable to the nonmoving party, giving that party the benefit

of all reasonable inferences. Smith Wholesale Co. v. R.J. Reynolds Tobacco Co.,

477 F.3d 854, 861 (6th Cir. 2007).
No. 11-5917 King, et al. v. Taylor Page 14

IV.

A.

Plaintiffs sued Taylor for damages under 42 U.S.C. § 1983, which permits an

individual to bring a private right of action against anyone who, under color of state law,

deprives a person of rights, privileges, or immunities secured by the Constitution or

federal statutes. Taylor seeks to avoid liability by invoking the affirmative defense of

qualified immunity. This defense “shields government officials performing

discretionary functions from civil damages liability as long as their actions could

reasonably have been thought consistent with the rights they are alleged to have

violated.” O’Malley v. City of Flint, 652 F.3d 662, 667 (6th Cir. 2011) (citation, internal

quotation marks, and ellipsis omitted). In determining whether a defendant is entitled

to qualified immunity, we make two inquiries: (1) taken in the light most favorable to

plaintiffs, do the facts show that the officer’s conduct violated a federal right, and (2)

was the right “clearly established” to the extent that a reasonable person in the officer’s

position would know that the conduct complained of was unlawful. Id.

The parties agree that the federal right at issue here is the right, secured by the

Fourth Amendment, to be free from excessive force during an authorized seizure. It is

undisputed that Taylor “seized” King by shooting him, thereby triggering the Fourth

Amendment’s “reasonableness” requirement. See Tennessee v. Garner, 471 U.S. 1, 7

(1985) (“[T]here can be no question that apprehension by the use of deadly force is a

seizure subject to the reasonableness requirement of the Fourth Amendment.”); see also

Ciminillo v. Streicher, 434 F.3d 461, 465–66 (6th Cir. 2006). “Determining whether the

force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment

requires a careful balancing of the nature and quality of the intrusion on the individual’s

Fourth Amendment interests against the countervailing governmental interests at stake.”

Graham v. Connor, 490 U.S. 386, 396 (1989) (citation and some internal quotation

marks omitted). In Garner, the Supreme Court held that the reasonableness of using

deadly force to subdue a suspect depends upon whether “the officer has probable cause

to believe that the suspect poses a threat of serious physical harm, either to the officer
No. 11-5917 King, et al. v. Taylor Page 15

or to others.” 471 U.S. at 11; see Lyons v. City of Xenia, 417 F.3d 565, 572 (6th Cir.

2005). 

B.

The district court determined that plaintiffs could not establish a constitutional

violation. Despite the existence of forensic evidence and expert testimony calling into

serious question the officers’ account of the incident—particularly the question whether

King pointed a gun at the officers just before being shot—the district court determined

that this evidence does not create a genuine factual dispute that requires a trial. We

disagree. Viewing the record in the light most favorable to plaintiffs, we conclude that

a factual dispute exists whether Taylor reasonably believed that King posed a threat of

serious physical harm to Taylor or the other officers. In our view, a jury could find,

based upon the forensic evidence, expert testimony, and common sense, that King did

not threaten the officers by pointing a gun at them just before he was shot.

The officers unequivocally testified that King pointed a gun at them while facing

them. Isaacs said that he saw King “looking right at [him]” while the gun was on its way

around toward him. Adams stated that King was “looking toward the door . . . at Deputy

Isaacs.” Because Taylor was standing to the right of Isaacs and Adams, if the officers

are believed, the bullet should have entered the left side of King’s face and traveled to

the right. And, because King was seated and therefore at a lower position than Taylor,

who was standing, the bullet should have traveled slightly downwards through King’s

head. (The photograph at R.32-12, Page ID: 343, demonstrates the point. Taylor was

standing in front of the blown-out window, while Isaacs and Adams stood to his left.)

But the bullet did not take this path. According to the autopsy report, the bullet entered

the right side of King’s face and traveled two and one-half inches to the left, and three

inches upward. The path is consistent with King being in a reclined position looking

straight ahead (not at the officers) when shot, rather than sitting up and looking toward

them, as the officers claim. This body position is further consistent with plaintiffs’

theory that King was shot while lying on his couch, not making any threatening gestures

towards the officers.
No. 11-5917 King, et al. v. Taylor Page 16

8

Taylor believes that whether King’s right arm was extended is “irrelevant” to whether he pointed

the gun at the officers. We disagree, for a jury could use its common sense to find that it would be nearly

impossible, based upon the way King’s body was positioned on the couch, for him to point a gun at the

officers unless his right arm was extended.

In addition, the officers’ testimony that King was pointing a gun at them just

before he was shot is called into genuine dispute by expert testimony. After he was

killed, King was found with a gun in his right hand, which was resting on his right hip.

While the presence of a gun in King’s right hand is consistent with the officers’

testimony, that it was found resting on his right hip decidedly is not. Isaacs said he saw

King point the gun at him just before he (Isaacs) turned to avoid being shot in the face.

Adams, who was standing next to Isaacs, also said he saw King point a gun towards

Isaacs. Taylor said he fired his rifle just when he saw King “get[] in front of [him]” and

“point[] [a gun] at [him].” Moreover, the officers (including Taylor) said they believed

at first that King might have shot at them. They could have plausibly believed this only

if King had his gun pointed directly at them, which would have required King to have

his right arm extended toward the officers, somewhat parallel to the floor.8 But a jury

could find such arm positioning entirely inconsistent with expert testimony and common

sense. Two medical experts opined that, due to the bullet’s severing of King’s medulla

oblongata, once shot, King immediately would have lost consciousness, causing his

entire body to become unresponsive and flaccid. In that case, gravity would have caused

King’s outstretched right arm to fall to the floor, not neatly into his lap. Indeed, this

sequence of events is consistent with the testimony of plaintiffs’ expert that “it is highly

unlikely that Mr. King’s right arm was extended toward the officers at the time of

injury,” as it was found resting on his right hip instead of the ground.

What exactly happened just before King was shot is a question for the jury, as

both sides’ theories of what transpired are sufficiently supported by evidence in the

record. Even without the further opinion of plaintiffs’ expert regarding the position of

King’s arm just before he was shot, the jury could draw on its common sense and

experience, along with the expert testimony regarding what happens to one’s body once

the medulla oblongata is perforated, to determine that King did not point a gun towards
No. 11-5917 King, et al. v. Taylor Page 17

9

Taylor defends his actions solely on the basis that King pointed the gun at the officers.

the officers just before he was shot, thereby rendering Taylor’s use of deadly force

unreasonable.9

Our decision in Brandenburg v. Cureton, 882 F.2d 211 (6th Cir. 1989), relied

upon by plaintiffs but distinguished by the district court, supports our conclusion. There,

the defendant officer testified that he shot the plaintiff’s husband because the husband

had pointed his weapon directly at officers in a threatening manner. Id. at 215. We

concluded that a jury could find otherwise, based upon expert testimony that the

“position of the [husband’s] body after death indicated that the right hand was not

grasping the trigger and that the position of the left arm could not prove that [the

husband] was aiming his weapon at the officers.” Id. The same is true here. The district

court discounted the persuasiveness of Brandenburg on the basis that, apparently unlike

in this case, Brandenburg involved “actual physical evidence that [the decedent] did not

have his finger on the trigger of the gun and was not aiming it at the officers when he

was shot.” This distinction is dubious. The “actual physical evidence” supporting the

plaintiff’s theory in Brandenburg is no stronger than plaintiffs’ evidence here. And, as

in Brandenburg, expert testimony and common sense could lead a jury to reject the

officers’ testimony that King was pointing a gun at them when Taylor shot him.

With respect to the second question in the qualified-immunity analysis, we have

little trouble concluding that if Taylor shot King while he was lying on his couch and not

pointing a gun at the officers, Taylor violated King’s clearly-established right to be free

from deadly force. It has been clearly established in this circuit for some time that

“individuals have a right not to be shot unless they are perceived as posing a threat to

officers or others.” Ciminillo, 434 F.3d at 468; see Bletz v. Gribble, 641 F.3d 743, 752

(6th Cir. 2011); Yates v. City of Cleveland, 941 F.2d 444, 447 (6th Cir. 1991); Robinson

v. Bibb, 840 F.2d 349, 351 (6th Cir. 1988). Genuine disputes of material fact preclude

upholding the district court’s entry of summary judgment on Taylor’s defense of

qualified immunity. See Bletz, 641 F.3d at 749 (“[I]f genuine issues of material fact

exist as to whether the officer committed acts that would violate a clearly established
No. 11-5917 King, et al. v. Taylor Page 18

right, then summary judgment [on the defense of qualified immunity] is inappropriate.”);

Poe v. Haydon, 853 F.2d 418, 426 (6th Cir. 1988). 

V.

The district court also entered summary judgment on plaintiffs’ state-law claims

of assault and battery on the basis that Taylor was entitled to a full defense under

Kentucky’s justification and immunity statutes. See Ky. Rev. Stat. §§ 503.070(2),

503.085(1). The statutes work in tandem in a civil suit. First, the justification statute

provides that the use of deadly force is justifiable when the individual “believes that such

force is necessary to protect himself against death, serious physical injury, . . . [or a]

felony involving the use of force[.]” Id. § 503.050(2). It also permits the use of deadly

force where an individual “believes that such force is necessary to protect a third person

against the use or imminent use of unlawful physical force by [another]” and the

individual believes “that the person whom he seeks to protect would himself have been

justified” in using deadly force. Id. § 503.070(2) (emphasis added). Second, if an

individual’s use of deadly force is justified under either provision—self-defense or

defense of a third person—he is “immune . . . from civil action for the use of such

force[.]” Id. § 503.085(2).

For the same reasons we find genuinely disputed the facts underlying the

question whether Taylor had probable cause to use deadly force to seize King, we find

genuinely disputed whether Taylor believed such force was necessary to protect himself

or another from death or serious physical injury. Summary judgment on Taylor’s

defense of immunity under state law, therefore, is not appropriate.

VI.

Finally, the district court granted Taylor summary judgment on plaintiffs’

negligence claim on the basis of qualified official immunity and lack of proximate cause.

Under Kentucky law, qualified official immunity affords protection to public

officers sued in their individual capacity from “damages liability for good faith judgment

calls made in a legally uncertain environment.” Yanero v. Davis, 65 S.W.3d 510, 522
No. 11-5917 King, et al. v. Taylor Page 19

10Because we find that bad faith can be shown by Taylor’s alleged violation of King’s clearly

established constitutional rights, we do not consider whether it also can be shown by way of “corrupt

motive” or “malicious intent” on the part of Taylor. Yanero, 65 S.W.3d at 523.

(Ky. 2001). Specifically, the defense “applies to the negligent performance by a public

officer or employee of (1) discretionary acts or functions, i.e., those involving the

exercise of discretion and judgment, or personal deliberation, decision, and judgment;

(2) in good faith; and (3) within the scope of the employee’s authority.” Id. (internal

citation omitted). “Bad faith” “can be predicated on a violation of a constitutional,

statutory, or other clearly established right which a person in the public employee’s

position presumptively would have known was afforded to a person in the plaintiff’s

position, i.e., objective unreasonableness.” Id. at 523. This standard is materially

similar to the one a plaintiff must meet to overcome a federal defense of qualified

immunity.

Just as Taylor’s defense of qualified immunity on the federal claim requires a

jury to resolve underlying disputed facts, so too with respect to Taylor’s defense of

qualified official immunity on plaintiffs’ negligence claim.10 The same is true also with

respect to Taylor’s defense that a superseding cause—King’s alleged criminal act of

pointing a gun at the officers—severs Taylor’s liability for any potential negligence on

his part. Summary judgment on this claim is not warranted.

VII.

For these reasons, we reverse the judgment of the district court and remand for

proceedings consistent with this opinion.