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 (a s guardian and conservator of Kevin Witherspoon) and Lakeisha Witherspoon (sister of Kevin Withersp oon) bring this 42 U.S. C. § 1983 action against defendants, the District of Colu mbia 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 ot her 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 De siree Walker, all officers in the Metropolitan Police Department (“MPD”) in the Narcotics a nd Special Investigati ons Division (“NSID”) (“Moving Defendants”) – have filed mo tions 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 defe ndants are Cathy L. Lanier, MPD chief of police; Thomas N. Faust, director of the District’s Department of Corrections; and two ot her 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 comp laint 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. N o. 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 th e 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 pro cess on behalf of [the named defendant].” ( See, e.g ., Anderson Aff. of Serv. at 1.) Each Moving De fendant has filed a motion to quash proof of service on the ground that the pe rson who accepted service, either Murphy or West, was “not authorized . . . to receive service of pro cess” on behalf of the Moving Defendant. ( See Hall Mot. to Quash at 1 (Dkt. No. 14); Anders on 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 design ate or authorize [the

2 Defendant Anderson’s motion is titled a “moti on 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. N o. 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 th e supporting memorandum or proposed order. ( See Walker Mot. & Mem. (Dkt. No. 22).) Accordi ngly, 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) (“insufficien t service of process is typi cally 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, asse rting 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 de fendant in this case by the surrounding circumstances.” (Pls. Opp’n to Hall Mot. at 1 (Dkt. N o. 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 defenda nts 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 Bre nda Gilmore, MPD Assistant General Counsel, who told him that Lieutenant Murphy would “have th e officers available for service of process or officially accept service of pr ocess 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 proc ess on defendants Anderson, Durham and Hall. (Darlene Aff. ¶¶ 2–3.) The person making the ca ll, who is not identifie d, purportedly “reached Sgt. Skelton and informed him of the law suit and discussed service ofprocess on [d]efendantdetectives.” ( Id. ¶ 4.) Sgt. Skelton, in turn, “informe d us that he was authorized to accept service of process for NSID [d]efendant-detectiv es and would make the officers available for service” ( id. ¶ 6) and “instructed us to arrive at roll call that day wh en 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. Ske lton refused to meet with her. ( Id. ¶¶ 9–19.)4 Howell went to NSID headquarters, where Li eutenant Murphy officially accepted service on behalf of defendants Anderson, Durham and Hall, st ating that he was auth orized to do so. (Roy Aff. ¶¶ 2–15.) Finally, Devin Howe ll’s affidavit states that, afte r 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 st ated he was authorized to accept service” on defendant Walker’s behalf. (Devin Aff. ¶¶ 2–11.) 6

ANALYSIS Plaintiffs contend that the Moving Defendant s have been properly served pursuant to Rule 4(e)(2) because Lieutenant Murphy and Capt ain West were each “agent[s] authorized by appointment . . . to receive service of proce ss,” Fed. R. Civ. P. 4(e)(2), while the Moving

Defendants have denied author izing any other person to acce pt service on their behalf. 7

6 Devin Brian Howell’s affidavit of service, a ffidavit, and plaintiffs’ opposition refer to the police captain who accepted service for defe ndant 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 . . . de livering a copy of each to an agent authorized by appointment or by law to receiv e service of process.” The “ag ent authorized . . . by law” language refers to authorizati on to receive process by legislat ive 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 curi am) (“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 se rved 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.”); Du rham Aff. ¶ 5 (“A copy of the summons and complaint in this matter was handed to me [by] Sg t. Avis King. When Sgt. King handed me the summons and complaint, she said that Lt. Murphy to ld me to give this to you.”); Walker Aff. ¶ 55 “Without valid service of summons or a waiver of service, the C ourt cannot establish proper venue and personal juri sdiction 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 ove rcome 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 b ears 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 th e burden of establishing its validity when challenged; to do so, he must de monstrate that the procedure em ployed 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 calcula ted, 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 defe ndant has received actual notice of the action, the provisions of Rule 4(e) should be liberally construed to e ffectuate 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 pl aintiffs to navigate, or a cat- and-mouse game for defendants who are otherwise subject to the cour t’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) (inter nal citations and quotation marks omitted; collecting cases). Still, proof of actual no tice 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 actua l 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 ac tually accepts process is not enough to bind the defendant to the court’s jurisdicti on; 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 serv ice 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-judi cial statements of the [agent].” Schwartz v. Thomas , 222 F.2d 305, 308 (D.C. Cir. 1955); a ccord Brodie v. Worthington , 2011 WL 4402783, at *1 (D.D.C. Sept. 21, 2011) (“even if th e Court construed” letters from the alleged agent “as a claim of authority to receive service for him,” plaint iff would still be required to “produce evidence that [defendant] actually intended to confer such authority”). Fo r 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, eviden ce 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 that7 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 aut hority must “present facts and circumstances showing the proper relationship betw een the defendant and its alleged agent”). Implied authorization is f ound 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 de fendant’s agent was impliedly authorized where the agent, defendants’ atto rney, “told [the plaintiffs] in no uncertain terms” that he represented defendants and had received a copy of th e complaint, instructed the plaintiffs to “not contact those [d]efendants ‘either by letter or in person,’” and dire cted plaintiffs “to convey ‘all inquiries’ to him or his office”). Two factually similar cases c onvince the Court that service was not prope r 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 employ ee 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 proc ess server over the phon e and later in the lobby

that he was not authorized to accept service on behalf of Marsha ls Service employees sued in their individual capacities, as well as affidav its from defendants stati ng that they had never authorized the general counsel’s employ ee 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 inef fective, regardless of what the employee told plaintiff, as plaintiff failed to de monstrate “any intent on the part of the deputies to authorize [the employee] to r eceive 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 th e 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 ha d never authorized sheri ff’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 sher iff’s counsel’s “understanding and assertion of her own authority,” there was insufficient evid ence of express or im plied authorization. Id. at *2. The record here is similarly lacking in any evidence that defendants Anderson, Durham, Hall, and Walker actually or by implication author ized an agent to accept service on their behalf. Accordingly, the Court finds that none of these de fendants 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 indicati on that any defendant has inten tionally evaded service, and substantial time remains in th e 120-day window to serve the complaint and summons. Thus, there is no need at this time fo r 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 la w enforcement personnel for service of process purposes due to safety concerns,” and also did no t give out work addresse s, 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 preven ts 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 [plain tiff] an opportunity to9 ORDERED that defendant Hall’s motion to quas h 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 qua sh proof of service (Dkt. No. 19) is GRANTED ; it is further ORDERED that defendant Walker’s motion to qua sh proof of service (Dkt. No. 22) is GRANTED ; and it is further ORDERED that the Affidavits of Service fo r 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 hesi tate to issue an appropriate order. The Court takes a dim view of the handling of se rvice 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 se rvice 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 enfo rce the rule – technical though they may be – . . . under the circumstances, the resources of the parties a nd 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).