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Addison v. Amica Mutual Insurance Co.

United States District Court, D. South Carolina, Orangeburg Division

May 21, 2019

Michael Addison, Plaintiff,
v.
Amica Mutual Insurance Company, Defendant.

          ORDER AND REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Michael Addison, proceeding pro se, filed an action in state court seeking to have an “umpire” appointed by the court pursuant to an insurance contract to resolve an appraisal dispute. Defendant Amica Mutual Insurance Company[1] removed the case to this court based on diversity of citizenship. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Defendant's motion to dismiss. (ECF No. 4.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Defendant's motion. (ECF No. 9.) Plaintiff responded by filing various motions which also partly addressed the motion to dismiss (ECF No. 21), to which Defendant responded (ECF No. 24), and Plaintiff replied (ECF No. 26). Having carefully considered the parties' submissions and the applicable law, the court finds dismissal should be granted for failure to effect service of process.

         BACKGROUND

         The following allegations are taken as true for the purposes of resolving Defendant's motion to dismiss. On October 22, 2018, Plaintiff filed an action against Defendant in the Orangeburg County Court of Common Pleas seeking to have an umpire appointed by the court to resolve an insurance appraisal dispute. (ECF No. 1-1.) Plaintiff emailed a copy of his state court filings to multiple people associated with Defendant on October 23, 2018. (ECF No. 4-3.) As stated above, on November 21, 2018, Defendant removed the case to this court on the basis of diversity of citizenship. (ECF No. 1.) Also, on November 21, 2018, Defendant filed a motion to dismiss, arguing, in part, that the Complaint should be dismissed because Plaintiff had not properly served Defendant. (ECF No. 4 at 2-3.) In its motion, Defendant noted that “[u]nder South Carolina law, service of a summons and complaint on an insurance carrier is governed by statute. Pursuant to South Carolina Code § 15-9-270, the summons in an action against an insurance carrier must be served on the Director of the South Carolina Department of Insurance.” (Id.)

         On December 26, 2018, Plaintiff filed a document making a No. of motions and also partially addressing Defendant's motion to dismiss, but Plaintiff did not address his failure to properly serve Defendant. (See ECF No. 21.) Defendant noted as much in its reply. (ECF No. 24 at 1.)

         On January 7, 2019, the South Carolina Department of Insurance sent a letter to Plaintiff advising him that the Director of Insurance had received the state court petition from Plaintiff but that the Director “cannot accept service of those documents as submitted . . . .”[2] (ECF No. 26-2 at 1.) Thus, the documents were returned to Plaintiff. (Id.) On January 18, 2019, Plaintiff advised the court that his attempt to serve Defendant through the Department of Insurance had been unsuccessful, asserting “SCDOI indicated that they DO NOT accept such petitions, and they returned the petition to Addison with a letter indicating why they do not accept such filings.” (ECF No. 26 at 3.)

         On February 19, 2019, Plaintiff filed a motion to strike the motion to dismiss. (ECF No. 36.) The motion addressed an alternative basis for dismissal raised in Defendant's initial motion-that Plaintiff potentially lacked standing to bring the case. In response to Plaintiff's motion to strike, Defendant argued that Plaintiff's motion was an attempt to further argue the motion to dismiss when briefing had been closed. (ECF No. 40 at 3.) Defendant further asserted that the letter from the Department of Insurance “speaks for itself. It states that the Director of Insurance could not accept service of the Plaintiff's documents as submitted because he can only accept service of process. In other words, the Petitioner has failed to properly serve process on the Director and Amica.” (ECF No. 40 at 3.)

         DISCUSSION

         A. Applicable Standards

         A defendant may challenge the sufficiency of service of process and seek dismissal of the case under Rule 12(b)(5) of the Federal Rules of Civil Procedure. Failure to properly serve the summons and complaint deprvies the court of personal jurisdiction over a defendant. See Koehler v. Dodwell, 152 F.3d 304, 306 (4th Cir. 1998); see also Fed.R.Civ.P. 12(b)(2).

         Although a civil action is commenced by filing a complaint with the court, the Federal Rules of Civil Procedure require that service on the defendants be effected within 90 days after the complaint is filed. See Fed.R.Civ.P. 3, 4(m). If a defendant is not served within the requisite time period, “the court . . . 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 plaintiff shows good cause for the failure to serve, the court must extend the time for service for an appropriate period. Id.

         B. Defendant's Motion to Dismiss

         In the motion to dismiss, Defendant asserts two bases for dismissal-failure to properly serve and lack of standing.

         1. Failure to ...


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