UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_________________________________________ 

 ) 

ANITRA POLLARD, et al., ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Action No. 12-01010 (ESH) 

 ) 

DISTRICT OF COLUMBIA, et al., ) 

 ) 

 Defendants. ) 

_________________________________________ ) 

MEMORANDUM OPINION AND ORDER 

 

Plaintiffs Anitra Pollard (as guardian and conservator of Kevin Witherspoon) and 

Lakeisha Witherspoon (sister of Kevin Witherspoon) bring this 42 U.S.C. § 1983 action against 

defendants, the District of Columbia and eight District employees in both their official and 

individual capacities. Plaintiffs allege in 16 counts that defendants unlawfully injured Kevin 

Witherspoon, a mentally disabled man, by, among other things, using him as a police informant 

and wrongfully imprisoning him. Four of the individual defendants – Sherman Anderson, 

Hampton D. Durham, Christopher A. Hall, and Desiree Walker, all officers in the Metropolitan 

Police Department (“MPD”) in the Narcotics and Special Investigations Division (“NSID”) 

(“Moving Defendants”) – have filed motions to quash proof of service.1

 For the reasons stated 

herein, the Court will grant the motions to quash and direct plaintiffs to perfect service. 

                                                            

1

 The remaining individual defendants are Cathy L. Lanier, MPD chief of police; Thomas N. 

Faust, director of the District’s Department of Corrections; and two other MPD officers in the 

NSID, Kathleen Wiedefeld and Isaac Jackson. (See Compl. at 1-3.) These defendants do not 

contest service, and their answer to the complaint is due on August 13, 2012. (See Minute Order, 

July 16, 2012 (granting in part and denying in part motion for extension of time to answer filed 

by the District, Lanier, Faust, and Wiedefeld).) 
2 

BACKGROUND 

Plaintiffs filed their complaint on June 20, 2012. On June 25, 2012, plaintiffs filed an 

affidavit of service for each Moving Defendant. (Anderson Aff. of Service (Dkt. No. 5); 

Durham Aff. of Service (Dkt. No. 6); Hall Aff. of Service (Dkt. No. 8); Walker Aff. of Service 

(Dkt. No. 11).) According to the affidavits, the process server, Devin Brian Howell, served 

defendants Anderson, Durham, and Hall on June 22, 2012, by giving a copy of the summons and 

complaint to Lieutenant Brian Murphy at the NSID headquarters (1215 Third Street N.E., 

Washington, D.C.), and he served defendant Walker on June 23, 2012, by giving a copy of the 

summons and complaint to Captain Lamar West at the MPD First District Substation (500 E 

Street S.E., Washington, D.C.). The affidavits state that Murphy and West were “designated and 

authorized by law to accept service of process on behalf of [the named defendant].” (See, e.g., 

Anderson Aff. of Serv. at 1.) Each Moving Defendant has filed a motion to quash proof of 

service on the ground that the person who accepted service, either Murphy or West, was “not 

authorized . . . to receive service of process” on behalf of the Moving Defendant. (See Hall Mot. 

to Quash at 1 (Dkt. No. 14); Anderson Mot. to Quash at 1 (Dkt. No. 15)2

; Durham Mot. to Quash 

at 1 (Dkt. No. 19); Walker Mot. to Quash at 1 (Dkt. No. 22).) Attached to each motion is an 

affidavit from the corresponding defendant stating that “I did not designate or authorize [the 

                                                            

2

 Defendant Anderson’s motion is titled a “motion to dismiss,” but the supporting memorandum 

and proposed order make clear that it is, in fact, a motion to quash proof of service. (See

Anderson Mot. & Mem. & Proposed Order (Dkt. No. 15).) Defendant Walker’s motion, titled a 

“motion to quash,” asks the Court to both quash the proof of service and dismiss Walker from 

the case, but does not mention dismissal in the supporting memorandum or proposed order. (See

Walker Mot. & Mem. (Dkt. No. 22).) Accordingly, the Court will treat all four motions as 

simply motions to quash proof of service. Cf. Hammond v. Fed. Bureau of Prisons, 740 F. Supp. 

2d 105, 109 (D.D.C. 2010) (“insufficient service of process is typically a defect that can be 

cured”). 
3 

person served] to accept service of process on my behalf.” (Anderson Aff. ¶ 4; Hall. Aff. ¶ 4; 

Durham Aff. ¶ 4; Walker Aff. ¶ 4.3

) 

Plaintiffs oppose the motions to quash, asserting that they had a “factual basis for 

believing” Murphy and West were “designated, or authorized, or approved, or appointed to 

accept service of process for defendant in this case by the surrounding circumstances.” (Pls. 

Opp’n to Hall Mot. at 1 (Dkt. No. 20); Pls. Opp’n to Durham Mot. at 1 (Dkt. No. 21); Pls. Opp’n 

to Anderson Mot. at 1 (Dkt. No. 22); Pls. Opp’n to Walker Mot. at 1 (Dkt. No. 24).) To support 

this contention, plaintiffs submitted with their opposition affidavits from (1) Darlene Lucille 

Eubank Howell (“Darlene Aff.”); (2) Roy Carleton Howell (“Roy Aff.”), plaintiffs’ counsel; and 

(3) Devin Brian Howell (“Devin Aff.”), the process server.4 Darlene Howell’s affidavit 

describes a failed attempt to serve defendants Anderson, Durham and Hall on June 20, 2012, 

through Sergeant Skelton at the NSID.5 (Darlene Aff. ¶ 19.) Roy Howell’s affidavit states that 

he had a conversation on June 21, 2012, with Brenda Gilmore, MPD Assistant General Counsel, 

who told him that Lieutenant Murphy would “have the officers available for service of process or 

officially accept service of process on their behalf” on June 22, 2012. (Roy Aff. ¶ 9.) The 

affidavit further states that on June 22, 2012, acting on Gilmore’s advice, Roy Howell and Devin 

                                                            

3

 The affidavit signed by defendant Walker and attached to her motion to quash is mistitled as 

“Affidavit of Hampton Durham.” (See Walker Aff. (Dkt. No. 22-1).) 

4

 The Court assumes that the three Howells are related to each other. 

5

 According to Darlene Howell, on June 20, 2012, a telephone call was placed in her presence to 

the NSID headquarters regarding service of process on defendants Anderson, Durham and Hall. 

(Darlene Aff. ¶¶ 2–3.) The person making the call, who is not identified, purportedly “reached 

Sgt. Skelton and informed him of the law suit and discussed service of process on [d]efendantdetectives.” (Id. ¶ 4.) Sgt. Skelton, in turn, “informed us that he was authorized to accept 

service of process for NSID [d]efendant-detectives and would make the officers available for 

service” (id. ¶ 6) and “instructed us to arrive at roll call that day when he would be present and 

other NSID officers also.” (Id. ¶ 8.) Darlene Howell then went to the address she had been 

given, but when she arrived, Sgt. Skelton refused to meet with her. (Id. ¶¶ 9–19.) 
4 

Howell went to NSID headquarters, where Lieutenant Murphy officially accepted service on 

behalf of defendants Anderson, Durham and Hall, stating that he was authorized to do so. (Roy 

Aff. ¶¶ 2–15.) Finally, Devin Howell’s affidavit states that, after learning from Lieutenant 

Murphy on June 22, 2012, that defendant Walker had transferred to MPD First District 

Substation, he went there on June 23, 2012, and gave the summons and complaint to 

“Commander Captain Lamar Walker [sic] . . . who stated he was authorized to accept service” on 

defendant Walker’s behalf. (Devin Aff. ¶¶ 2–11.)6

 

ANALYSIS 

Plaintiffs contend that the Moving Defendants have been properly served pursuant to 

Rule 4(e)(2) because Lieutenant Murphy and Captain West were each “agent[s] authorized by 

appointment . . . to receive service of process,” Fed. R. Civ. P. 4(e)(2), while the Moving 

Defendants have denied authorizing any other person to accept service on their behalf.7 

                                                            

6

 Devin Brian Howell’s affidavit of service, affidavit, and plaintiffs’ opposition refer to the 

police captain who accepted service for defendant Walker as “Lamar Walker.” (See Walker Aff. 

of Serv.; Devin. Aff. ¶ 8–11, Pls. Opp’n to Walker Mot. at 3–4.) However, this is an error; the 

correct name of the captain is Lamar West. (See Walker Mot. to Quash at 1–4.) 

7

 Rule 4(e)(2) provides that “an individual . . . may be served [a summons and complaint] in a 

judicial district of the United States by . . . delivering a copy of each to an agent authorized by 

appointment or by law to receive service of process.” The “agent authorized . . . by law” 

language refers to authorization to receive process by legislative enactment. 4A Charles A. 

Wright & Arthur R. Miller, Federal Practice and Procedure § 1098 (3d ed. 2002); accord 

Nelson v. Swift, 271 F.2d 504, 505 (D.C. Cir. 1959) (per curiam) (“The phrase ‘by law’ refers to 

statutory provisions for substituted service”). 

There are other methods of proper service, such as “delivering a copy of the summons and of the 

complaint to the individual personally,” Fed. R. Civ. P. 4(e)(2)(A), or “leaving a copy of each at 

the individual’s dwelling or usual place of abode with someone of suitable age and discretion 

who resides there,” Fed. R. Civ. P. 4(e)(2)(B). No Moving Defendant has been personally 

served (see Hall Aff. ¶ 5 (“I was not personally served with copies of the Summons and 

Complaint”); Anderson Aff. ¶ 2 (“I have not been personally served with the Summons and 

Complaint in the above-captioned case.”); Durham Aff. ¶ 5 (“A copy of the summons and 

complaint in this matter was handed to me [by] Sgt. Avis King. When Sgt. King handed me the 

summons and complaint, she said that Lt. Murphy told me to give this to you.”); Walker Aff. ¶ 5 
5 

“Without valid service of summons or a waiver of service, the Court cannot establish 

proper venue and personal jurisdiction over the defendants, and the case may not proceed.” 

Mann v. Castiel, 729 F. Supp. 2d 191, 196 (D.D.C. 2010) (citing Omni Capital Int’l v. Rudolf 

Wolff & Co., 484 U.S. 94, 104 (1987)).8

 “A signed return of service . . . constitutes prima facie 

evidence of valid service, which can be overcome only by strong and convincing evidence.” 

Gates v. Syrian Arab Republic, 646 F. Supp. 2d 79, 85–86 (D.D.C. 2009) (citing O’Brien v. R.J. 

O'Brien Assocs., Inc., 998 F.2d 1394, 1398 (7th Cir. 1993)); accord 62B Am. Jur. 2d Process § 

294. However, once challenged, the plaintiff bears the burden of showing valid service by a 

preponderance of the evidence. Gates, 646 F. Supp. 2d at 84 (citing Koerner v. United States, 

246 F.R.D. 45, 47 (D.D.C. 2007)); Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987) (“[T]he 

party on whose behalf service is made has the burden of establishing its validity when 

challenged; to do so, he must demonstrate that the procedure employed satisfied the requirements 

of the relevant portions of Rule 4”).9

 

                                                                                                                                                                                               

(“I found a copy of the summons and complaint in this matter on my desk at the First District 

Police Precinct when I came to work on June 25, 2012.”)), and there is no indication that 

plaintiffs attempted service by either of these methods. 

8

 The Federal Rules’ service provisions stem from the constitutional guarantee of due process of 

law, which requires “notice reasonably calculated, under all the circumstances, to apprise 

interested parties of the pendency of the action and afford them an opportunity to present their 

objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). 

9

 In cases such as this one, “where the defendant has received actual notice of the action, the 

provisions of Rule 4(e) should be liberally construed to effectuate service and uphold the 

jurisdiction of the court,” since “[t]he rules governing service of process are not designed to 

create an obstacle course for plaintiffs to navigate, or a cat-and-mouse game for defendants who 

are otherwise subject to the court’s jurisdiction,” but are instead “for the purpose of providing a 

likelihood of bringing actual notice to the intended recipient.” Ali v. Mid-Atlantic Settlement 

Services, Inc., 233 F.R.D. 32, 35–36 (D.D.C. 2006) (internal citations and quotation marks 

omitted; collecting cases). Still, proof of actual notice does not itself satisfy the rules, as “notice 

alone cannot cure an otherwise defective service.” Mann, 729 F. Supp. 2d at 191 (citing 

Whitehead v. CBS/Viacom, Inc., 221 F.R.D. 1, 4 (D.D.C. 2004)).
6 

To establish agency by appointment, “an actual appointment for the specific purpose of 

receiving process normally is expected.” 4A Charles A. Wright & Arthur R. Miller, Federal 

Practice and Procedure § 1097 (3d ed. 2002). “Claims by an agent of having authority to 

receive process or the fact that an agent actually accepts process is not enough to bind the 

defendant to the court’s jurisdiction; there must be evidence that the defendant intended to confer 

that authority upon the agent in order to satisfy the terms of Rule 4(e)(2).” Id. “The rule is clear 

that it must appear that any agent who accepts service must be shown to have been authorized to 

bind his principal by the acceptance of process and, further, that the authority to accept such 

service cannot be shown by the extra-judicial statements of the [agent].” Schwartz v. Thomas, 

222 F.2d 305, 308 (D.C. Cir. 1955); accord Brodie v. Worthington, 2011 WL 4402783, at *1 

(D.D.C. Sept. 21, 2011) (“even if the Court construed” letters from the alleged agent “as a claim 

of authority to receive service for him,” plaintiff would still be required to “produce evidence 

that [defendant] actually intended to confer such authority”). For example, a clerk may not be 

authorized to receive service on another’s behalf even though she “represented herself as such on 

the receipt,” since “acceptance of service and . . . statements of authority are, in and of 

themselves insufficient to establish the required agency relationship.” First Amer. Bank, N.A. v. 

United Equity Corp., 89 F.R.D. 81, 84 (D.D.C. 1981). 

Although actual appointment is required, evidence of “the requisite intent” of defendant 

to make that appointment may be “implied . . . from the circumstances surrounding the service 

upon the agent.” Wright & Miller, supra, § 1097. “The federal courts look to the circumstances 

of the agency relationship, and although authority to accept process need not be explicit, it must 

either be express or implied from the type of relationship that has been established between the 

defendant and the alleged agent”; put differently, there must be a “factual basis for believing that 
7 

an appointment” to receive process had been made. Id.; accord United States v. Ziegler Bolt & 

Parts Co., 111 F.3d 878, 881 (Fed. Cir. 1997) (“An agent’s authority to accept service may be 

implied in fact,” but the party seeking to demonstrate such authority must “present facts and 

circumstances showing the proper relationship between the defendant and its alleged agent”). 

Implied authorization is found only in the rare case. See, e.g., Thelen v. City of Elba, 2009 WL 

212940, at *5 (D. Minn. Jan. 28, 2009) (service on defendant’s agent was impliedly authorized 

where the agent, defendants’ attorney, “told [the plaintiffs] in no uncertain terms” that he 

represented defendants and had received a copy of the complaint, instructed the plaintiffs to “not 

contact those [d]efendants ‘either by letter or in person,’” and directed plaintiffs “to convey ‘all 

inquiries’ to him or his office”). 

 Two factually similar cases convince the Court that service was not proper in this case. 

In Fenwick v. United States, 691 F. Supp. 2d 108 (D.D.C. 2010), defendants challenged the 

validity of service of process where an employee of the general counsel’s office of the U.S. 

Marshals Service accepted service in an office lobby on behalf of three deputy U.S. marshals 

sued in their individual capacity. The deputy marshals produced affidavits from the general 

counsel’s employee stating that he told the process server over the phone and later in the lobby 

that he was not authorized to accept service on behalf of Marshals Service employees sued in 

their individual capacities, as well as affidavits from defendants stating that they had never 

authorized the general counsel’s employee to accept service on their behalf. Id. at 112–13. The 

plaintiff, however, asserted that the employee had claimed to be authorized to accept service on 

the deputies’ behalf. Id. at 113. The court found service ineffective, regardless of what the 

employee told plaintiff, as plaintiff failed to demonstrate “any intent on the part of the deputies 

to authorize [the employee] to receive service on their behalf.” Id. 
8 

Tindle v. Xenos, 2010 WL 4739787 (E.D. Mich. Nov. 16, 2010) also involved similar 

facts. In Tindle, plaintiff sought to serve sixteen sheriff’s deputies in a federal civil rights suit. 

Id. at *1. Plaintiff’s process server contacted the sheriff’s department counsel, who informed 

him that “‘she would accept service for all of the defendants’ in the case.” Id. Later, defendants 

moved to quash service, asserting that they had never authorized sheriff’s counsel to accept 

service on their behalf. Id. The court quashed the return of summons, finding that while plaintiff 

“appears to have relied in good faith” on the sheriff’s counsel’s “understanding and assertion of 

her own authority,” there was insufficient evidence of express or implied authorization. Id. at 

*2. 

The record here is similarly lacking in any evidence that defendants Anderson, Durham, 

Hall, and Walker actually or by implication authorized an agent to accept service on their behalf. 

Accordingly, the Court finds that none of these defendants have been properly served pursuant to 

Rule 4(e)(2). 

CONCLUSION 

For the foregoing reasons, the Court will grant the motions of defendants Anderson, 

Durham, Hall, and Walker to quash proof of service.

10 Accordingly, it is hereby 

                                                            

10 As noted, plaintiffs do not appear to have attempted to personally serve any of the defendants. 

In addition, there is no indication that any defendant has intentionally evaded service, and 

substantial time remains in the 120-day window to serve the complaint and summons. Thus, 

there is no need at this time for the Court to issue an order to facilitate service of process. Cf. 

Tindle, 2010 WL 4739787, at *2-*3 (after sheriff’s counsel informed plaintiff’s process server 

that “she could not release home addresses of law enforcement personnel for service of process 

purposes due to safety concerns,” and also did not give out work addresses, the court expressed 

concern that “the facts of this case amount to a diligent plaintiff getting the ‘run-around’ and that 

plaintiff “has been caught in a service-of-process ‘catch 22’ that prevents him from having his 

case decided on the merits, despite active efforts to serve the defendants”; the court extended the 

time to serve process under Rule 4(m), ordered that defendant’s counsel file, under seal, the 

home addresses and work shift information of the defendants for the court to provide to plaintiff, 

“subject to an appropriate protective order,” in order to “give [plaintiff] an opportunity to 
9 

ORDERED that defendant Hall’s motion to quash proof of service (Dkt. No. 14) is 

GRANTED; it is further 

ORDERED that defendant Anderson’s motion to quash proof of service (Dkt. No. 15) is 

GRANTED; it is further 

ORDERED that defendant Durham’s motion to quash proof of service (Dkt. No. 19) is 

GRANTED; it is further 

ORDERED that defendant Walker’s motion to quash proof of service (Dkt. No. 22) is 

GRANTED; and it is further 

ORDERED that the Affidavits of Service for defendants Hall, Anderson, Durham and 

Walker (Dkt. Nos. 5, 6, 8, and 11) are QUASHED. 

SO ORDERED.

 /s/ 

ELLEN SEGAL HUVELLE 

United States District Judge 

Date: August 10, 2012 

                                                                                                                                                                                               

provide proper personal service” upon defendants). However, if future good-faith efforts to 

serve are frustrated, this Court will not hesitate to issue an appropriate order. 

The Court takes a dim view of the handling of service of process in this case. As another 

court has stated: 

[T]he entire matter of service of process in this case reflects poorly on everyone 

concerned. Plaintiff . . . [ran] a considerable risk that the service would prove ineffective. 

Defendants, for their part, received actual notice of the complaint, and have sought 

dismissal for technical reasons only, having suffered no prejudice of any kind. While they 

are entitled to seek to enforce the rule – technical though they may be – . . . under the 

circumstances, the resources of the parties and the Court could surely have been put to 

better use. 

Som v. Daniel Law Office, P.C., 573 F. Supp. 2d 349, 355 (D. Mass. 2008).