IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

BERNICE MUHAMMAD, ) 

 ) 

Plaintiff, ) 

 ) 

v. ) CIVIL ACTION NO. 10-0054-CG-B 

 ) 

HSBC BANK, USA, NA et al. ) 

 ) 

Defendants. ) 

 ) 

ORDER

This matter is before the court on defendants’ motion to dismiss (Doc. 13), the Report 

and Recommendation of the Magistrate Judge (Doc. 25), and plaintiff’s objection thereto (Doc. 

27). Upon a de novo review of those portions of the report and recommendation to which 

objection is made, the court agrees with the Report and Recommendation and finds that case 

should be dismissed without prejudice. 

 The Magistrate Judge found that plaintiff failed to effect service of process under 

Federal or Alabama law within the time allowed by Federal Rule of Civil Procedure 4(m). 

Service of Process on a corporation in a federal lawsuit is governed by Federal 

Rule of Civil Procedure 4(h). Service under that rule must be accomplished 

in one of two manners: (1) in accordance with the law of the forum state; or (2) by 

delivering a copy of the summons and complaint to an “officer, managing agent, 

general agent, or any other agent authorized by appointment or law to receive 

service of process.” Fed. R.Civ. P.4(h)(1)(A),(B); Sheet Metal Workers’ Union 

Local # 441 Health and Welfare Fund v. Air Comfort Company, Inc., 2010 U.S. 

Dist. LEXIS 39491 (S.D. Ala. April 20, 2010). Likewise, in Alabama, service on 

a corporation requires service on “an officer, a partner (other than a limited 

partner), a managing or general agent, or any agent authorized by appointment or 

by law to receive service of process." Rule 4(c)(6), Ala.R.Civ.P.; see also Alfa 

Corp. v. Alfagres, S.A., 385 F. Supp.2d 1230, 1238 (M.D. Ala. 2005) ([ ]). 

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(Doc. 25, p. 4). 

 The Magistrate Judge noted that plaintiff had been notified that defendants had not been 

properly served, yet failed to respond to defendants’ motion to dismiss and took no action to 

remedy the defects or show good cause for the failure. (Doc. 25, pp. 6-7). The Magistrate Judge 

stated that “Plaintiff’s inaction, in the face of notice of defective service, provides no basis for 

believing that she will ultimately take the necessary steps to serve the Defendants properly.” 

(Doc. 25, p. 7). 

 Plaintiff objects to the Report and Recommendation citing phone calls she made to the 

court and to defense counsel concerning the status of the case. She argues that the case was 

stayed by order of the court and that defendants’ actions are improper. Nowhere in plaintiff’s 

objection does she contend that she has served the corporate defendants in compliance with FED.

R. CIV. P. 4(h) or that she will serve defendants in compliance with Rule 4(h). While plaintiff is 

correct that a stay was entered in this case, the only things stayed were the deadlines contained in 

the preliminary scheduling order. (Doc. 20 – endorsed order staying the “deadlines contained in 

the Preliminary Scheduling Order”). Defendants requested a stay of the deadlines pending the 

court’s determination of the dispositive issues raised in defendants’ motion to dismiss. (Doc. 17). 

The Report and Recommendation addresses the motion to dismiss which was properly before the 

court. The court agrees with the Magistrate Judge’s findings and conclusions and finds no merit 

to plaintiff’s objection.

CONCLUSION 

 After due and proper consideration of all portions of this file deemed relevant to the 

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issues raised, and a de novo determination of those portions of the report and recommendation to 

which objection is made, the report and recommendation of the magistrate judge made under 28 

U.S.C. § 636(b)(1)(B) is ADOPTED as the opinion of this court. It is hereby ORDERED that 

this case is DISMISSED without prejudice. 

DONE and ORDERED this 22nd day of June, 2010. 

 /s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE 

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