Adekunle B. Ojelade v. William Buster Coleman , 258 F. App'x 257 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 07, 2007
No. 07-12907 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00206-CV-5-RS-EMT
ADEKUNLE B. OJELADE,
Plaintiff-Appellant,
versus
WILLIAM BUSTER COLEMAN,
LMHC Executive Director,
CHILDREN'S HOME SOCIETY,
Emerald Coast Division,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(December 7, 2007)
Before BIRCH, DUBINA and WILSON, Circuit Judges.
PER CURIAM:
Adekunle Ojelade, proceeding pro se, appeals the district court’s dismissal
of his employment discrimination complaint for failure to effectuate service.
Ojelade filed the complaint against his former employer, William Coleman, the
director of Children’s Home Society (“CHS”), and CHS, alleging disability
discrimination, failure to accommodate his disability, disparate treatment, hostile
work environment, and retaliation. On appeal, Ojelade argues that the district
court’s dismissal, pursuant to Fed. R. Civ. P. 4(m), was improper because he
formally served process on both defendants though the United States Postal
Service (“USPS”).
We review the dismissal of a complaint without prejudice for failure to
timely serve a defendant under Rule 4(m) for an abuse of discretion. Lepone-
Dempsey v. Carroll County Comm'rs, 476 F.3d 1277, 1280 (11th Cir. 2007). Rule
4(m) states that:
If service of the summons and complaint is not made upon a
defendant within 120 days after the filing of the complaint, the court,
upon motion or on its own initiative after notice to the plaintiff, shall
dismiss the action without prejudice as to that defendant or direct that
service be effected within a specified time; provided that if the
plaintiff shows good cause for the failure, the court shall extend the
time for service for an appropriate period.
Fed. R. Civ. P. 4(m).
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Rule 4(c)(2) provides, in relevant part that, “[s]ervice may be effected by
any person who is not a party and who is at least 18 years of age.” Fed. R. Civ. P.
4(c)(2). Additionally, Rule 4(e) provides that service may be effected upon an
individual: “(1) pursuant to the law of the state in which the district court is located
. . .; or (2) by delivering a copy of the summons and of the complaint to the
individual personally or by leaving copies thereof at the individual’s dwelling
house . . . or by delivering a copy of the summons and of the complaint to an agent
authorized by appointment or by law to receive service of process.” Fed. R. Civ. P.
4(e). Florida law provides that process shall be served by the sheriff or by a
“special process server appointed by the sheriff.” Fla. Stat. § 48.021; See Space
Coast Credit Union v. The First, F.A., 467 So. 2d 737, 739 (Fla. Dist. Ct. App.
1985).
As an alternative to formal service on an individual defendant, a plaintiff
may notify the defendant by mail of the commencement of a civil action and
request that party to waive formal service. Fed. R. Civ. P. 4(d)(2). If the defendant
fails to respond to service by mail, however, the plaintiff must effect personal
service pursuant to Rule 4(e). Lepone-Dempsey, 476 F.3d at 1281 (citing Mfrs.
Hanover Trust Co. v. Ponsoldt, 51 F.3d 938, 940 (11th Cir. 1995)).
Ojelade was instructed by the court numerous times on the methods
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available for serving process on the defendants. The court explicitly advised
Ojelade that sending summonses via USPS was insufficient service. The court also
gave Ojelade two extensions of time: a 20-day extension, then a 30-day extension.
Ojelade did not properly effect service on either defendant during the time allotted,
despite the court’s instructions and two extensions of time. Ojelade failed to enlist
“any person who is not a party and who is at least 18 years of age” to deliver a
copy of the summons and complaint to Coleman, and his use of USPS was not a
proper substitute because USPS was not a natural person and cannot effect service.
See Fed. R. Civ. P. 4(c)(2). Similarly, Ojelade did not serve process on CHS
because he did not enlist someone over the age of 18 to effect service on a proper
officer or agent of CHS, and USPS was not a proper substitute. Therefore, the
district court did not abuse its discretion in sua sponte dismissing the case under
Rule 4(m) because Ojelade did not follow the requirements of Rule 4. See, e.g.,
Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (per curiam) (affirming
the dismissal of a pro se litigant’s claims for failing to meet the explicit
requirements of Rule 4). Accordingly, we affirm.
AFFIRMED.
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