IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

STEVEN L. CAIN, *

*

 Plaintiff, *

*

vs. * CIVIL ACTION NO. 14-00577-KD-B

*

CONTINENTIAL MOTORS, INC., *

*

 Defendant. *

REPORT AND RECOMMENDATION

This action is before the Court on Defendant Continental

Motors, Inc.’s Motion to Dismiss (Doc. 12), Motion to Quash 

Alias Summons (Doc. 15), and Supplemental Motion to Dismiss 

(Doc. 16). The motions have been referred to the undersigned 

for a report and recommendation pursuant to 28 U.S.C. § 

636(b)(1)(B). Based upon a careful review of Defendant’s 

motions and the case file, the undersigned RECOMMENDS that 

Defendant’s motions be GRANTED, in part, and that Plaintiff’s 

complaint be dismissed without prejudice. 

I. Background

On December 16, 2014, Plaintiff, proceeding pro se, filed 

the instant action alleging employment discrimination against 

Defendant Continental Motors, Inc. (hereinafter Continental). 

(Doc. 1). The Court, on June 12, 2015, issued a show cause 

order directing Plaintiff to show cause by June 22, 2015 why 

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this case should not be dismissed due to his failure to serve 

the defendants within 45 days after the filing of his complaint. 

(Doc. 3). Plaintiff failed to file any response to the Court’s 

order, and on August 5, 2015, the Court issued a second show 

cause order directing Plaintiff to show cause, by August 26, 

2015, why this case should not be dismissed due to his failure 

to serve the Defendant. (Doc. 4). Plaintiff’s copy of the 

order was returned as undeliverable due to “insufficient 

address.” (Doc. 5). Accordingly, the Court issued a third show 

cause order directing Plaintiff to show cause by September 10, 

2015, why this action should not be dismissed for failure to 

perfect serve on the Defendant. (Doc. 6). This order was sent 

to Plaintiff at a more specific address, and on September 10, 

2015, Plaintiff filed a letter requesting additional time to 

“hopefully try and remedy issues with the now current H.R. 

manager[.]” (Doc 7). In an order dated September 11, 2015, the 

Court observed that Plaintiff’s letter was not responsive to the 

Court’s show cause order because it provided no explanation for 

his failure to timely serve the Defendant. (Doc. 8). The Court 

ordered Plaintiff to effect service on the Defendant or show 

cause why the action should not be dismissed for his failure to 

prosecute and failure to comply with the Court’s orders, on or 

before September 24, 2015. (Id.). Plaintiff was cautioned that 

if he failed to comply with the Court’s order by September 24, 

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2015, this case would be dismissed without prejudice on 

September 25, 2015. (Id.)

On September 21, 2015, attorney Thomas Matthew Loper 

entered a Notice of Appearance on behalf of Plaintiff (Doc. 9), 

and on September 25, 2005, Loper filed a proof of service 

reflecting that Continental was served, via certified mail, on 

September 23, 2015. (Doc. 11). The proof of service reflects 

that the summons was addressed to Continental Motors, Inc., was 

delivered by certified mail, and was signed for by “SH Smith”.

(Id.).

On October 7, 2015, Defendant filed a motion seeking the 

dismissal of Plaintiff’s complaint pursuant to Rule 12(b)(5) of 

the Federal Rules of Civil Procedure. (Doc. 12). In the 

motion, Defendant argued that Plaintiff’s attempt to serve 

Defendant, via certified mail, by addressing the summons to 

Defendant in general and not a specific person, was defective 

because SH Smith, the accounts payable employee who signed for 

the certified mail, is not an officer, managing agent, or 

general agent, or any other agent authorized by appointment of 

law to receive process for Defendant as required by the Federal 

Rules of Civil Procedure. (Id.). Defendant further asserts 

that simply sending the summons and complaint to Defendant at 

its address, without addressing it to a officer or agent, is not 

sufficient service. (Id. at 3). 

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Along with its motion, Defendant filed the affidavit of 

Elizabeth Cotton, a legal administrator with Continental. (Doc. 

12-1). In the affidavit, Cotton avers that Continental 

maintains an agent in Montgomery, Alabama, who is authorized by 

it to receive service of process on behalf of Continental. 

Cotton further avers that Sonya Smith, the Continental accounts 

payable employee who signed for the certified mail, is not an 

officer, a managing or general agent, or other agent of 

Continental. (Id.)

The Court, on October 8, 2015, issued an order directing 

Plaintiff to file a response to Defendant’s motion by October 

28, 2015. (Doc. 13). On October 9, 2015, Plaintiff’s counsel 

filed a notice of Proposed Summons directed to Rhett Ross, 

President of Continental. (Doc. 14). Defendant, in response, 

filed a motion seeking to quash service on the ground that 

Plaintiff was attempting to do an “end around” in order to 

defeat Defendant’s Motion to Dismiss, and that in any event, the 

summons was untimely because Plaintiff was ordered to perfect 

service no later than September 24, 2015. (Doc. 15). On 

October 29, 2015, Defendant filed a supplemental motion seeking 

the dismissal of this action on the ground that Plaintiff failed 

to comply with the Court’s order directing a response to its

motion to dismiss; thus, Defendant’s motion is uncontroverted 

and is due to be granted. (Id.).

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II. Legal Analysis 

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 

& Welfare Fund v. Air Comfort Co., Inc., 2010 U.S. Dist. LEXIS 

39491 *2, 2010 WL 1729745, *1 (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 Jackson v. Vaughan Regional 

Medical Center, 2009 U.S. Dist. LEXIS 93762, 2009 WL 3242082, *4 

(S.D. Ala. Oct. 6, 2009) (holding that the plaintiff’s attempt 

to serve the defendant via certified mail addressed to "Vaughn 

[sic] Regional Medical Center," rather than any particular 

officer or agent was defective service, and that the 

“[c]ommentary to the Alabama Rules explains that ‘personal or 

certified mail service must be directed to the registered or 

appointed agent or to a specific person, such as an 

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officer.’”)(emphasis omitted). 

The record in this case reflects that Plaintiff, while 

proceeding pro se, was given several opportunities to perfect 

service on Defendant, and was afforded additional opportunities

to perfect service after attorney Loper entered an appearance on 

Plaintiff’s behalf. Notwithstanding, Plaintiff has failed to 

perfect service. As noted by Defendant, and not contested by 

Plaintiff, the certified mail directed to the company in general 

was not proper service under either federal or Alabama law. 

There is simply no evidence that “SH Smith”, the individual who 

signed for the certified mail, is either an officer, a managing 

or general agent or agent authorized by appointment of law to 

accept service on behalf of Continental. Thus, Plaintiff’s 

attempted service by certified mail was defective. While 

attorney Loper secured an alias summons directed to Rhett Ross, 

the president of Defendant Continental, there is nothing before 

the Court indicating that any attempt was made to serve the 

alias summons, let alone that the company president was served. 

Thus, Defendant’s motion seeking to quash summons is due to be 

GRANTED with respect to the summons issued by certified mail to 

the corporation in general.

Having documented Plaintiff and his counsel’s failure to 

comply with applicable service of process requirements despite 

the fact that they have been given over a year in which to do 

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so, the Court now turns to the question of remedy. Defendant 

contends that this action should be dismissed due to defective 

service as well as Plaintiff’s repeated failure to comply with 

the Court’s directives, including the Court’s order directing

Plaintiff to file a response to Defendant’s Motion to Dismiss 

(Doc. 13). The undersigned is cognizant that courts have held 

that where there is a reasonable prospect that a plaintiff can 

perfect proper service, the action should generally be 

preserved. See Jackson, 2009 U.S. Dist. LEXIS 93762 at *6, 2009 

WL 3242082 at *4 (where there is a reasonable prospect that the 

plaintiff will ultimately be able to serve the defendant 

properly, service should be quashed and the plaintiff given an 

opportunity to properly perfect service); Korman v. I.R.S., 2007 

U.S. Dist. LEXIS 7776, *3, 2007 WL 404041, *1 (S.D. Fla. Feb. 2, 

2007) (upon technical failure in service of process on 

defendant, quashing of service of process was appropriate 

remedy, not dismissal of complaint).

At this juncture, it does not appear that Plaintiff will 

perfect proper service on Defendant. As noted, supra, this 

action has been pending nearly a year, and Plaintiff has been 

afforded multiple attempts to perfect service on Defendant, but 

has failed to do so. Further, Plaintiff was placed on notice, 

through the affidavit of Elizabeth Cotton, that Defendant has an 

authorized agent for service of process located in Montgomery, 

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Alabama; however, there is nothing before the Court indicating 

that Plaintiff has taken any steps to perfect notice on said 

agent. (Doc. 12-1). Plaintiff’s inaction, and repeated failure 

to comply with the Court’s directives, provides no basis for 

believing that he will ultimately take the steps necessary to 

perfect service on Defendant. Furthermore, the undersigned 

finds that under the circumstances, no alternatives short of 

dismissal will suffice. See, e.g., Link v. Wabash R.R. Co., 370 

U.S. 626, 630-31 (1962) (interpreting Rule 41(b) as not 

restricting the court’s inherent authority to dismiss sua sponte

an action for lack of prosecution); Mingo v. Sugar Cane Growers 

Co-op of Fla., 864 F. 2d 101, 102 (llth Cir. 1989)(“[t]he 

district court possesses the inherent power to police its 

docket[]. . . [and] . . . [i]ncident to this power, the judge 

may impose formal sanctions upon dilatory litigants. The 

sanctions imposed can. . . [include]. . . an order dismissing 

the action with or without prejudice[]”). Accordingly, the 

undersigned recommends that Defendant’s Motion to Dismiss be 

GRANTED, in part, and that Plaintiff’s complaint be dismissed 

without prejudice.

III. Conclusion

Based on the foregoing, the undersigned RECOMMENDS that 

Defendant’s Motion to Quash be GRANTED, that Defendant’s Motion 

to Dismiss be GRANTED, in part, and that Plaintiff’s complaint 

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be dismissed without prejudice.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects 

to this recommendation or anything in it must, within fourteen 

(14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 

636(b)(1); Fed. R. Civ. P. 72(b); S.D. ALA. GenLR 72(c). The 

parties should note that under Eleventh Circuit Rule 3-1, “[a] 

party failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

the right to challenge on appeal the district court's order 

based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of 

a proper objection, however, the court may review on appeal for 

plain error if necessary in the interests of justice.” 11th 

Cir. R. 3-1. In order to be specific, an objection must 

identify the specific finding or recommendation to which 

objection is made, state the basis for the objection, and 

specify the place in the Magistrate Judge’s report and 

recommendation where the disputed determination is found. An 

objection that merely incorporates by reference or refers to the 

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briefing before the Magistrate Judge is not specific. 

DONE this 25th day of November, 2015.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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