Summary
observing that under Rule 106, only the clerk of the court may serve process by certified or registered mail
Summary of this case from Carter v. EZ FLO Int'lOpinion
Civil Action No. 3:99-CV-1662-L
October 6, 2003
ORDER
Before the court are Defendant Fidelity Investment Institutional Services Company, Inc.'s Motion to Dismiss for Insufficiency of Process, filed July 30, 2001; Defendant Ford Motor Company's Motion to Dismiss Plaintiffs Original Complaint, filed December 20, 2001; and Defendants' Motion for Summary Judgment, filed August 21, 2003. Upon consideration of the parties' written submissions and the applicable authority, the court, for the reasons herein stated, grants Defendant Fidelity Investment Institutional Services Company, Inc.' s Motion to Dismiss for Insufficiency of Process; grants Defendant Ford Company's Motion to Dismiss Plaintiffs Original Complaint; and grants Defendants' Motion for Summary Judgment.
I. Background
On April 24, 1996, Plaintiff Eddie Kleppinger ("Plaintiff or "Kleppinger") filed a lawsuit against Defendants, alleging employment discrimination and denial of employee benefits, and on October 21, 1996, Plaintiff filed his First Amended Complaint. Plaintiff alleged that The Associates discriminated against him by denying him promotions and failing to reasonably accommodate his disability in violation of the Americans With Disabilities Act ("ADA"), 42U.S.C. § 12101 et seq.; violated the ADA by retaliating against him for filing a charge with Equal Employment Opportunity Commission ("EEOC"); violated the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq.; and violated the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. Plaintiff further alleged that Defendant Aetna violated his rights under the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), 29 U.S.C. § 1161 et seq. Plaintiff also alleged a claim under Texas state law for intentional infliction of emotional distress against the Associates.
Defendants are Associates Corporation of North America; Associates Corporation of North America (A Texas Corporation); Associates Financial Services Company, Inc.; Associates Payroll Management Services Company, Inc.; Associates First Capital Corporation; Associates Credit Card Services, Inc.; (collectively referred to as "The Associates"); TranSouth Financial Corp.; Ford Holdings, Inc.; Ford Motor Fidelity Investment Trust Company ("Fidelity Investment"). Defendant Fidelity Investment asserts that its incorrectly identified in Plaintiffs Complaint. The correct name for this entity is Fidelity Investment Institutional Services Company. The court refers to this Defendant as "Fidelity Investment." Defendant Managed Health Network Corporation has since been dismissed from this lawsuit. See Court's Order of July 31, 2003. Unless otherwise stated, the court refers to all remaining Defendants collectively as "Defendants."
On March 13, 1998, Plaintiff sought leave to amend his complaint to include additional ERISA claims and common law claims against Defendants. The judge to whom this case was previously assigned denied Plaintiffs motion for leave because of Defendants' then pending summary judgment motions. On August 25, 1998, Kleppinger I was transferred to this court.
On June 23, 1999, Plaintiff filed this lawsuit. The Original Complaint, which names all of the Defendants in Kleppinger I and adds Fidelity Investment asserts the same claims that he was denied leave to assert in Kleppinger I. While this litigation was pending, the court granted Defendants' motions for summary judgment in Kleppinger I as to all of Plaintiff s claims, except for his claim for unpaid commissions. On June 30, 2003, the court issued a final judgment in the amount of $10,000 for the unpaid commission claim, and dismissed the action with prejudice.
Defendants Fidelity Investment and Ford Motor Company now move to dismiss Plaintiffs Complaint for insufficiency of service of process pursuant to Fed.R.Civ.P. 12(b)(5) and 4(c). Defendants collectively move for summary judgment on all claims asserted in this action as barred by the doctrines of res judicata and collateral estoppel. The court discusses the various motions individually below.
II. Defendants' Motions to Dismiss
Defendants Fidelity Investment and Ford Motor Company move to dismiss Plaintiffs Complaint for insufficiency of service of process pursuant to Fed.R.Civ.P. 4(c) and 12(b)(5). Defendant contends that Plaintiff failed to follow the proper procedure for effecting service under either state law or federal law. Plaintiff responds that he has properly effected service, and therefore requests the court to deny the motions. For the reasons herein stated, the court determines that Plaintiff has failed to effect proper service on Defendants Fidelity Investment and Ford Motor Company.
Fidelity Investment moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(4), which addresses insufficiency of process. Fidelity Investment does not contend that the summons was deficient, although it states elsewhere that it has been incorrectly named in this lawsuit; rather, it complains about the manner of service. A Rule 12(b)(5) motion is the proper vehicle for challenging the mode of delivery or the lack of delivery of the summons and complaint. Although Fidelity Investment should have moved under Rule 12(b)(5), to deny the motion, because it stated the improper rule, would be to elevate form over substance. The court will therefore treat Fidelity Investment's motion as though it were brought under Rule 12(b)(5).
Rule 4(h) of the Federal Rules of Civil Procedure governs the service of process requirements for corporations. The Rule provides that service shall be effected:
in a judicial district of the United States in the matter prescribed for individuals by subdivision (e)(1), or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.
Fed.R.Civ.P. (4)(h). Rule 4(e)(1) provides that service of process on an individual from whom a waiver has not been obtained and filed may be effected in any judicial district of the United States pursuant to "the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State." Fed.R.Civ.P. 4(e)(1).
In this case, it is undisputed that Plaintiff did not effect service through personal service. Plaintiff asserts that he effected service on Fidelity Investment and Ford Motor Company in accordance with Texas law. Under Texas law, service of process may be made "by registered or certified mail, with delivery restricted to addressee only, return receipt requested," Tex. R. Civ. P. 106, which further directs that "[u]nless the citation or an order of the court otherwise directs, the citation shall be served by [an] officer authorized by Rule 103." The three officers Texas law empowers to serve process are the sheriff, constable, and clerk of court. Tex. R. Civ. P. 103. Texas permits service of process via certified mail, return receipt requested; however, only the clerk of the court may serve process in this manner. Tex. R. Civ. P. 103, 106(a). Moreover, "[n]o person who is a party to or interested in the outcome of the suit shall serve any process." Tex. R. Civ. P. 103.
Plaintiff attempted to effect service on Fidelity Investment by express mail and on Ford Motor Company by certified mail. Fidelity Investment and Ford Motor Company contend that Plaintiff served both summonses himself and prepared and signed the return of service in connection with his attempt to effect service on both of them. Plaintiff has submitted the Affidavit of Eddie Kleppinger, Sr., who is Plaintiffs biological father, in an effort to show that service was proper under Texas law. Mr. Kleppinger states in his affidavit that he is not an interested party in this lawsuit, and that he mailed the summons and complaint to Ford Motor Company and Fidelity Investment.
As stated before, Rule 106(a)(2) sets forth the requirements for service by mail, and expressly limits it to "registered or certified mail, return receipt requested." Tex. R. Civ. P. 106(a)(2). Plaintiffs attempt to serve Fidelity Investment by express mail was therefore improper. Rule 106(a)(2) further directs that "[u]nless the citation or an order of the court otherwise directs, the citation shall be served by [an] officer authorized by Rule 103." As stated before, the three officers authorized under Texas law to serve process are the sheriff, constable, and clerk of court. Although Plaintiff has presented evidence demonstrating that his father mailed the summons and complaint to Fidelity Investment and Ford Motor Company, there is no evidence that Kleppinger's father is one of the authorized officers allowed under Texas law to effect service of process. Plaintiffs attempts to effect service on Fidelity Investment and Ford Motor Company were improper.
Although Plaintiff is now proceeding in this action pro se, he was afforded ample opportunity to effect proper service on Fidelity Investment and Ford Motor Company, and was admonished by the court in its order of March 30, 2001, that failure to properly effect service on these Defendants by April 23, 2001 would result in dismissal of this action against those entities. Plaintiff failed to effect proper service on these Defendants within the time allowed by the court, and has not attempted to correct the deficiencies. While it is true that Plaintiffs attempted service provided Fidelity Investment and Ford Motor Company with notice of this lawsuit, actual notice does not dispense with the requirements for proper service of process. Dismissal of this action against these Defendants is appropriate under Fed.R.Civ.P. 12(b)(5). Accordingly, the court grants Defendant Fidelity Investment Institutional Services Company, Inc.'s Motion to Dismiss for Insufficiency of Process, and grants Defendant Ford Company's Motion to Dismiss Plaintiffs Original Complaint.
III. Defendants' Motion for Summary Judgment
This Motion for Summary Judgment is brought by all Defendants, except Managed Health Network. Because two of the Defendants, Fidelity Investment and Ford Motor Company, have been dismissed from this lawsuit pursuant to the court's rulings herein, the court will consider the motion in its current posture, without regard to these two Defendants.
A. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458. Further, a court "may not make credibility determinations or weigh the evidence" in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summaryjudgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summaryjudgment must be granted. Celotex, 477 U.S. at 322-23.
B. Analysis
Defendants contend that all of Plaintiff s claims arise out of the same nucleus of operative fact. Defendants therefore contend that Plaintiffs claims are barred by the doctrines of res judicata and collateral estoppel. The court agrees. Defendants also contend that Fidelity Investment is in privity with other Defendants; however, the court need not decide this issue, as it has dismissed Fidelity Investment from this lawsuit.
Res judicata is a judicially-created doctrine that has long been applied by the federal courts to prevent repeated litigation of the same claims and issues by the same parties, in addition to protecting litigants from the burden and vexation of multiple lawsuits, the doctrine fosters judicial economy and promotes the finality and certainty of judgments. See Alien v. McCurry, 449 U.S. 90, 94 (1980) (recognizing that res judicata serves to "relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.") The doctrine embraces two distinct preclusion concepts: claim preclusion (commonly referred to as simply "res judicata" or "true" or "pure" res judicata) and issue preclusion (often termed "collateral estoppel"). See St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 436 (5th Cir. 2000); United States v. Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994). Claim preclusion prohibits parties and their privies from raising any claim or defense in a later action that was or could have been raised in support of or in opposition to the cause of action asserted in a prior action that was resolved by a final judgment on the merits. See Allen, 449 U.S. at 94; In re Southmark Corp., 163 F.3d 925, 934 (5th Cir.), cert. denied, 527 U.S. 1004 (1999); Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994). Issue preclusion, on the other hand, bars the relitgation of issues of fact or law that were actually adjudicated, and essential to the judgment, in a prior suit between the parties on a different cause of action, see Allen, 449 U.S. at 94; St. Paul Mercury Ins. Co., 224 F.3d at 436; Shanbaum, 10 F.3d at 310, and "has the effect of establishing conclusively questions of law or fact law that have received a final judgment for the purposes of a later suit." Haynes v. Lemann, 921 F. Supp. 385, 389 (N.D. Miss. 1995). Although Defendants move for summary judgment based on both res judicata and collateral estoppel, the court focuses on res judicata, as it is dispositive, and will not address collateral estoppel.
For claim preclusion to apply, the following four conditions must be satisfied. First, the parties in the subsequent action must be identical to, or in privity with, the parties in the prior action. Second, the judgment in the prior case must have been rendered by a court of competent jurisdiction. Third, the prior action must have concluded with a final judgment on the merits. Fourth, both suits must involve the same claim or cause of action. See Ellis v. Amex Life Insurance Co., 211 F.3d 935, 937 (5th Cir.2000); In re Southmark, 163 F.3d at 934; Shanbaum, 10 F.3d at 310; Eubanks v. Federal Deposit Ins. Corp., 977 F.2d 166, 169 (5th Cir. 1992). Shanbaum, 10 F.3d at 310.
The first three requirements for res judicata are easily met. First, it is undisputed that Plaintiff and Defendants, with the exception of Fidelity Investment, were all parties to the prior litigation ( Kleppinger I). Second, there is no dispute that this court issued judgment in Kleppinger I, or that it had jurisdiction over the litigation and the parties. Third, there is no dispute that Kleppinger I concluded with a final judgment on the merits.
With respect to the final condition, whether the same claim or cause of action is involved in both suits, the Fifth Circuit applies a transactional test of the Restatement § 24. B.R. Eubanks, M.D. v. Federal Deposit Ins. Corp., 977 F.2d 166, 171 (5th Cir. 1992). Under this approach, the critical issue is whether the two actions are based on the "same nucleus of operative facts." Id. This inquiry requires the court to look at the factual predicate of the claims asserted, not the legal theories upon which a plaintiff relies. Id. Applying this test, it is clear that this action is based on the same set of operative facts as the prior action, that is, Kleppinger's termination of employment and denial or loss of employee benefits. The last requirement for res judicata is met.
Kleppinger contends that he was forced to bring a second lawsuit because he was denied leave to file a second amended complaint in Kleppinger I, and, therefore, deprived of the opportunity to plead all of his claims in one lawsuit. The court is not persuaded. Plaintiff filed his Original Complaint in Kleppinger I on April 24, 1996, and filed his First Amended Original Complaint on October 21, 1996. On September 26, 1996, a scheduling order was issued in the case, which established, inter alia, deadlines for the following pretrial matters: January 6, 1997, as the deadline for filing motions to amend pleadings; February 3, 1997, as the deadline for filing dispositive motions; and April 7, 1997, as the deadline for completion of discovery. After several extensions of the discovery and dispostive motion deadlines, all of which were requested by the parties, the final deadlines for completion of discovery and filing dispositive motions were January 31, 1998, and March 16, 1998, respectively. The deadline for amendment of pleadings was never extended, and, therefore, expired on January 6, 1997. Kleppinger sought to leave to file a second amended complaint on March 16, 1998, nearly two years after the lawsuit was filed, fourteen months after the deadline for amendment of pleadings had expired, a month and a half after the deadline for completion of discovery, and three days before the deadline for filing dispositive motions. Because of Defendants' pending summary judgment motions, the judge who was previously assigned the case denied Plaintiff leave to amend his pleadings. Plaintiff certainly should have discovered all facts giving rise to his claims by the discovery deadline, which, as stated before, was January 31, 1998. Although Kleppinger was denied leave to amend his pleading, he provides no explanation why he could not have timely presented all of his claims in the prior lawsuit. Plaintiff had a full and fair opportunity to litigate this matter, and did so in Kleppinger I.
Claim preclusion "treats a judgment, once rendered, as the full measure of relief to be accorded between the same parties on the same 'claim' or 'cause of action.'" St. Paul Mercury Ins. Co., 224 F.3d at 436. "One motivating principle behind claim preclusion is waiver. If a party does not raise a claim or a defense in the prior action, that party thereby waives its right to raise that claim or defense in the subsequent action." Shanbaum, 10 F.3d at 310. All of the claims asserted in this action were either adjudicated, or could have been adjudicated, in Kleppinger I. Plaintiff has failed to create a genuine issue of material fact as to any of the elements necessary for an application of res judicata. The court determines that Plaintiffs claims and this lawsuit are barred by the doctrine of res judicata. Accordingly, Defendants are entitled to judgment as a matter of law.
IV. Conclusion
For the reasons herein stated, the court grants Defendant Fidelity Investment Institutional Services Company, Inc.'s Motion to Dismiss for Insufficiency of Process; grants Defendant Ford Motor Company's Motion to Dismiss Plaintiffs Original Complaint; and grants Defendants' Motion for Summary Judgment. This action is hereby dismissed without prejudice as to Defendants Fidelity Investment Institutional Services Company, Inc. and Ford Motor Company, and dismissed with prejudice as to all other Defendants. The court will issue judgment by separate document pursuant to Fed.R.Civ.P. 58.
It is so ordered.