IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Portia A. Boulger, :

Plaintiff, : Case No. 2:17-cv-186

v. : Judge George C. Smith 

James H. Woods, : Magistrate Judge Elizabeth P. Deavers

Defendant. :

DEFENDANT JAMES H. WOODS’ MOTION FOR SUMMARY JUDGMENT OR, 

IN THE ALTERNATIVE, MOTION FOR DISMISSAL

Defendant James H. Woods (“Mr. Woods”), by and through the undersigned counsel, 

moves this Court under Rule 56 of the Federal Rules of Civil Procedure for an Order granting a 

summary judgment or, in the alternative, under Rule 12 of the Federal Rules of Civil Procedure,

dismissing Plaintiff Portia A. Boulger’s claims. The reasons in support of this Motion are more 

fully set forth in the attached Memorandum.

Respectfully submitted,

/s/ Patrick Kasson

Patrick Kasson (0055570)

Kari D. Hehmeyer (0096284)

REMINGER CO., L.P.A.

200 Civic Center Drive, Suite 800

Columbus, Ohio 43215

Phone: (614) 232-2418

Fax: (614) 232-2410

pkasson@reminger.com

khehmeyer@reminger.com

Counsel for Defendant James H. Woods

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MEMORANDUM IN SUPPORT

I. PRELIMINARY STATEMENT

Plaintiff has failed to properly serve Mr. Woods—despite having over five months to do 

so. Without proper service upon Mr. Woods, this Court lacks personal jurisdiction over Mr. 

Woods. As such, Plaintiff’s claims against Mr. Woods must be dismissed.1

II. STATEMENT OF FACTS

Plaintiff Portia A. Boulger (“Plaintiff”) filed her Complaint against Defendant James H. 

Woods (“Mr. Woods”) on March 3, 2017, alleging claims for defamation and false light/invasion 

of privacy stemming from a question Mr. Woods tweeted out to his various followers on March 

12, 2016. (See Doc. #1, generally). Unable to properly serve Mr. Woods, on June 1, 2017, Plaintiff 

filed a request for an extension of time to effect service. (See Doc. #4, generally). This Court 

granted Plaintiff’s request on June 6, 2017, and stated in its Order, “Plaintiff must effect service 

over Defendant WITHIN SIXTY (60) DAYS OF THE DATE OF THIS ORDER.” (Doc. #5, 

PageID 41). 

 

1 The Sixth Circuit has recognized that raising an insufficient service of process defense in a motion for summary 

judgment is “sufficient under the Rules” when the defense is asserted first in an answer, thus preserving it. King v. 

Taylor, 694 F.3d 650, 657 (6th Cir. 2012). “Courts are split as to whether a Rule 12(b)(5) motion, which is commonly 

referred to as a ‘pre-answer’ motion, is the proper procedural vehicle for attacking service of process after an answer 

has been filed.” Moreno-Garcia Yakima Police Dept., No. CV-09-3123-EFS, 2010 WL 4386481, at *1 (E.D. Wash. 

Oct. 27, 2010). However, “the lack of other pretrial procedures for raising an improper service defense suggests that 

post-answer Rule 12(b) motions should be permitted. Rule 12(i) requires courts to hear and decide Rule 12(b)(1)–(7) 

defenses before trial, whether made in pleading or by motion.” Id. at *2; Fed. R. Civ. P. 12(i). As such, “a court will 

look past the label chosen by the movant and treat the motion as a request for a ruling on the defense” under Rule 

12(i). King, 694 F.3d at 665, fn. 2; see also Moreno-Garcia, 2010 WL 4386481, at *2 (considering the motion under 

the Rule 12(b)(5) standard); Sassower v. City of White Plains, No. 89 Civ. 1267 (MJL), 1993 WL 378862, at *6 

(S.D.N.Y. Sept. 24, 1993) (“if the defense of improper service is timely raised, the Court may treat the motion as a 

motion to dismiss under Rule 12 of the Federal Rules of Civil Procedure”); Conley v. City of Minneapolis, Civil No. 

07-2379 (JRT/JJK), 2009 WL 1562756, at *3 (D. Minn. June 3, 2009) (“when the defense of service of process is 

timely raised in a defendant’s answer, it is appropriate to deem the defendant’s challenge to the insufficiency of service 

of process on summary judgment as an application for dismissal under Rule 12(d)”); United States v. Marple Cmty. 

Record, Inc., 335 F. Supp. 95, 101 (D.C. Pa. 1971) (considering a defendant’s motion for summary judgment on the 

ground of insufficient service of process). 

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Mr. Woods filed his Answer on June 7, 2017, asserting various defenses, including 

insufficiency of service of process and lack of personal jurisdiction. (Doc. #6, PageID 46–47). The 

Rule 26(f) report was filed on July 11, 2017, stating that Mr. Woods “has not been served,” and 

that Mr. Woods “contests personal jurisdiction.” (Doc. #12, PageID 127). The parties also 

recommended this Court stay discovery and stay setting dates pending a resolution of Mr. Woods’ 

Motion for Judgment on the Pleadings that was filed on June 7, 2017, after his Answer. (See Doc.

#7, generally; Doc. #12, PageID 127–129). This Court agreed, and ordered discovery in this case 

stayed. (Doc. # 15, PageID 150). On August 5, 2017, the sixty day extension of time to effect 

service expired, and proper service has not been made upon Mr. Woods. (See Doc. #5, generally).

III. LAW AND ARGUMENT

A. Mr. Woods Is Entitled To Dismissal Of Plaintiff’s Defamation And False 

Light/Invasion Of Privacy Claims. 

1. Mr. Woods preserved his insufficient service of process and lack of 

personal jurisdiction defenses when he asserted both in his Answer. 

Rule 12 of the Federal Rules of Civil Procedure requires that certain defenses be raised in 

a party’s first responsive filing, or else a party risks waiver of those defenses. See Fed. R. Civ. P. 

12(b); 12(h)(1). To preserve the defense of “insufficient service of process,” a defendant need 

only assert the defense in his answer. See King v. Taylor, 694 F.3d 650, 657 (6th Cir. 2012) 

(“defendant was permitted under Rule 12(h) to preserve his service defense by including it in his 

answer, which he did”); see also U.S. v. Ziegler Bolt and Parts Co., 111 F.3d 878, 880 (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). Likewise, “to preserve the 

defense of lack of personal jurisdiction, a defendant need only state the defense in its first 

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responsive filing.” King, 694 F.3d at 657 (quoting Mattel, Inc. v. Barbie-Club.com, 310 F.3d 293, 

307 (2d Cir. 2002)). 

Here, Mr. Woods’ first responsive filing was his Answer, in which he asserted the defenses 

of “insufficiency of service of process” and “lack of personal jurisdiction,” among other defenses. 

(Doc. #6, PageID 46–47). Thus, because Mr. Woods asserted the defenses in his first responsive 

filing, both defenses are preserved.

2. Mr. Woods’ filing of his Motion for Judgment on the Pleadings did not 

waive his insufficient service of process and lack of personal 

jurisdiction defenses.

To the extent that Plaintiff attempts to argue that Mr. Woods was required to raise all his 

defenses in his Rule 12(c) Motion for Judgment on the Pleadings, or else the defenses are waived, 

this argument lacks merit for two reasons. First, the waiver of Rule 12(b)(2)–(5) defenses—

including insufficient service of process under Rule 12(b)(5) and lack of personal jurisdiction 

under Rule 12(b)(2)—only applies if 1) a party files a pre-answer motion to dismiss under Rule 

12(b) that fails to raise any Rule 12(b)(2)–(5) defenses, or 2) a party does not file a pre-answer

motion to dismiss under Rule 12(b) but then fails to raise the Rule 12(b)(2)–(5) defenses in its 

answer. See Fed. R. Civ. P. 12(h)(1)(A)–(B). Here, the first scenario does not apply because Mr. 

Woods did not file a pre-answer motion to dismiss, but rather filed a Rule 12(c) motion for 

judgment on the pleadings which, by definition, cannot be filed pre-answer. See Fed. R. Civ. P. 

12(h)(1)(A); see also Fed. R. Civ. P. 12(c) (noting that “[a]fter the pleadings are closed . . . a party 

may move for judgment on the pleadings”). (See Doc. #7, generally). Likewise, the second 

scenario does not apply because, although Mr. Woods did not file a pre-answer motion to dismiss 

under Rule 12(b), he did raise his defenses in his Answer. See Fed. R. Civ. P. 12(h)(1)(B). (See

Doc. #6, PageID 46–47). Thus, the waiver provisions under Rule 12(h)(1) do not apply. 

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Second, even assuming that Mr. Wood’s Motion for Judgment on the Pleadings was subject 

to the waiver provisions of Rule 12(h)(1), “a party cannot be deemed to have waived . . . defenses 

which were not . . . available at the time they could first have been made.” Holzsager v. Valley 

Hospital, 646 F.2d 792, 796 (2d Cir. 1981). Here, on June 6, 2017, Plaintiff was granted an 

additional sixty days to properly serve Mr. Woods, thus extending the time to effect service to 

August 5, 2017. (Doc. #5, PageID 41). On June 7, 2017, after Plaintiff’s request was granted, Mr. 

Woods filed his Motion for Judgment on the Pleadings. (See Doc. #7, generally). At the time Mr. 

Woods filed his Motion for Judgment on the Pleadings, he could not have even raised—much less

waived—his insufficient service of process and lack of personal jurisdiction defenses, as those 

defenses were not available to raise until after August 5, 2017. See Holzsager, 646 F.2d at 796. 

(Doc. #5, PageID 41). Rather, both defenses only became ripe for adjudication through a motion—

at the earliest—on August 6, 2017, when the additional sixty days to properly serve Mr. Woods 

expired. (See Doc. #5, generally). As such, Mr. Woods’ filing of his Motion for Judgment on the 

Pleadings did not waive his insufficient service of process and lack of personal jurisdiction 

defenses. 

3. Because Plaintiff has failed to properly serve Mr. Woods within sixty 

days of this Court’s June 6, 2017, Order, Plaintiff’s claims must be 

dismissed.

Pursuant to Rule 4(m), “[i]f a defendant is not served within 90 days after the complaint is 

filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action 

without prejudice against that defendant or order that service be made within a specified time.” 

Fed. R. Civ. P. 4(m). If the court grants additional time for service to be made and the defendant 

is still not served, dismissal of the action is proper. See Roller v. Brennan, No. 2:16-cv-257, 2016 

WL 4920901, at *1 (S.D. Ohio Sept. 15, 2016) (dismissing action after plaintiff was granted an 

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extension to effect service but still failed to effect service upon defendants); Jordan v. Ohio State 

University, No. 2:08-cv-1122, 2010 WL 2760940, at *3 (S.D. Ohio July 13, 2010) (plaintiff’s

failure to serve defendant within time limit “provided for in Rule 4(m) or the thirty days mandated 

in the Court’s order” required dismissal of action); Becker v. Wilkinson, No. 2:05-CV-908, 2007 

WL 3094896, at *1 (S.D. Ohio Oct. 19, 2007) (defendant’s motion to dismiss granted where 

plaintiff failed to effect proper service of process after being granted an extension of time to do 

so). “Plaintiff bears the burden of exercising due diligence in perfecting service of process and in 

showing that proper service has been made.” Beyoglides v. Montgomery County Sheriff, 166 F.

Supp. 3d 915, 917 (S.D. Ohio 2016) (citing Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996)). 

Plaintiff fails to make this showing.

Here, Plaintiff’s Complaint was filed on March 3, 2017. (See Doc. #1, generally). On June 

1, 2017, approaching the 90 day time limit for service, Plaintiff filed a request for an extension of 

time to effect service, which this Court granted on June 6, 2017. (See Doc. #4, generally; Doc. #5, 

PageID 41). This Court’s Order stated, “Plaintiff must effect service over Defendant WITHIN 

SIXTY (60) DAYS OF THE DATE OF THIS ORDER.” (Doc. #5, PageID 41). As of August 

5, 2017—the sixty day mark of this Court’s June 6, 2017, Order—the record is devoid of any 

evidence establishing that proper service has been made upon Mr. Woods.2(See Doc. #5, 

generally). Accordingly, Plaintiff’s Complaint must be dismissed for failure to properly serve Mr. 

Woods. 

 

2 Mr. Woods’ “full awareness that he had been sued makes no legal difference to the question whether he was properly 

served.” King, 694 F.3d at 655–656 (citing Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991)).

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4. Because Plaintiff has not perfected service of process, this Court lacks 

personal jurisdiction over Mr. Woods, and Plaintiff’s claims must be 

dismissed. 

It is well-established that “[i]n the absence of service of process (or waiver of service by 

the defendant), a court ordinarily may not exercise power over a party the complaint names as 

defendant.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999); see also 

Omni Capital Intern., Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987) (“Before a federal 

court may exercise personal jurisdiction over a defendant, the procedural requirement of service 

of summons must be satisfied.”); Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444–

445 (1946) (“service of summons is the procedure by which a court . . . asserts jurisdiction over 

the person of the party served”). “And in the absence of personal jurisdiction, a federal court is 

‘powerless to proceed to an adjudication.’” King, 694 F.3d at 655 (quoting Ruhrgas AG v. 

Marathon Oil Co., 526 U.S. 574, 584 (1999)). 

Here, because Plaintiff has failed to effect proper service of process, and Mr. Woods has 

not waived service, this Court lacks personal jurisdiction over Mr. Woods. See Beyoglides, 166 F.

Supp. 3d at 917 (citing Friedman, 929 F.2d at 1156) (“absent either waiver or proper service of 

process, this Court does not have personal jurisdiction”). Accordingly, Plaintiff’s claims against 

Mr. Woods must be dismissed. 

IV. CONCLUSION 

Because Plaintiff has failed to properly serve Mr. Woods, Plaintiff’s claims against Mr. 

Woods must be dismissed. Similarly, because Plaintiff has failed to properly serve Mr. Woods, 

this Court lacks personal jurisdiction over Mr. Woods. As such, Mr. Woods is entitled to judgment 

as a matter of law, and Plaintiff’s claims for defamation and false light/invasion of privacy must 

be dismissed.

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Respectfully submitted,

/s/ Patrick Kasson

Patrick Kasson (0055570)

Kari D. Hehmeyer (0096284)

REMINGER CO., L.P.A.

200 Civic Center Drive, Suite 800

Columbus, Ohio 43215

Phone: (614) 232-2418

Fax: (614) 232-2410

pkasson@reminger.com

khehmeyer@reminger.com

Counsel for Defendant James H. Woods

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and accurate copy of the foregoing was served 

via this Court’s ECF System, this 15th day of August, 2017, upon all counsel of record. 

/s/ Patrick Kasson

Patrick Kasson (0055570)

Kari D. Hehmeyer (0096284)

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