IN THE UNITED STATES DISTRICT COURT FOR THE ... -...
Transcript of IN THE UNITED STATES DISTRICT COURT FOR THE ... -...
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
LEE YOUNG AND CHARLES J. MIKHAIL PLAINTIFFS
V. NO. 1:09-CV-669
RICHARD F. SCRUGGS, INDIVIDUALLY;
SMBD, INC., DIRECTLY AND AS SUCCESSOR
IN INTEREST TO SCRUGGS, MILLETTE BOZEMAN,
AND DENT A/K/A SMBD, AND AS SUCCESSOR IN
INTEREST TO SCRUGGS LEGAL, P.A.; AND
DOE DEFENDANTS 1-20 DEFENDANTS
DEFENDANTS’ AMENDED MOTION TO
STRIKE PURPORTED RETURNS OF SUMMONS
Defendants Richard F. Scruggs and SMBD, Inc. (“Defendants”), request this Court to strike
the purported returns of summons as to Defendant Richard Scruggs filed by Plaintiffs on January 25,
2010 (Dkt. Nos. 23 and 26). In support of this Motion, Defendants state as follows:
1. Defendants filed their Motion to Dismiss and supporting Memorandum Brief on
Monday, December 21, 2009. Plaintiffs responded on Monday, January 4, 2010. Defendants’ served
their rebuttal brief on Tuesday, January 20, 2010.
2. Among other relief sought in their Motion to Dismiss, Defendants have asked this
Court to dismiss Plaintiffs’ claims against Defendant Richard Scruggs for failure to sufficiently serve
Scruggs with a summons and Complaint. Specifically, Defendants have noted that Plaintiffs have
failed to submit a return of service under oath (as required by FRCP 4(l)(1)) and that the certified
mail receipt (attached to their Opposition Brief as Exhibit “A”) does not satisfy FRCP 4(e)(1) and
the relevant Mississippi and Kentucky procedural rules for certified mail service.
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3. On January 25, Plaintiffs filed a return of summons as to Defendant SMBD (Dkt. No.
22) (the “SMBD Return”) and a purported return of summons as to Defendant Richard Scruggs (Dkt.
No. 23) (the “Scruggs Return”).
4. The SMBD Return reflects the testimony under oath of a process server indicating that
she served Charlene Bosarge, an officer in the company. Defendants do not contest service of the
summons and Complaint on Ms. Bosarge for SMBD.
5. In contrast, the Scruggs Return is not signed under oath as required by FRCP 4(l)(1).
See, e.g., Economy Stone Midstream Fuel, LLC v. M/V A.M. Thompson, 2009 WL 973441, *1 (N.D.
Miss. April 9, 2009) (holding FRCP 4(l)(1) requires affidavit from process server); Patterson v.
Brown, 2008 WL 219965, *12 (W.D. N.C. January 24, 2008) (finding attorney’s unsworn assertions
insufficient to satisfy FRCP 4(l)(1)). The Scruggs Return fails to satisfy the requirements of FRCP
4(l)(1), and this Court should strike it.
6. Subsequent to (and no doubt in response to) the filing of Defendants’s Motion to
Strike (Dkt. No. 25) related to the Scruggs Return, Plaintiffs filed yet another purported return of
summons for Defendant Richard Scruggs (Dkt. No. 26) (the “Scruggs Return II”). The process
server (an employee of Plaintiffs’ legal counsel based on her given address) states in conclusory
fashion that she completed service “by certified mail pursuant to FRCP 4, MRCP 4 and KRCP 4” and
attaches a copy of the same mail receipt Plaintiffs previously submitted as Exhibit “A” to their
Opposition to Motion to Dismiss (Dkt. No. 17).
7. As already addressed in Defendants’ Rebuttal Brief, pp. 2-4 (Dkt. No. 21), the
certified mail receipt fails to satisfy both MRCP 4(c)(5) and KRCP 4.01(1)(a). Notably, this past
week the Mississippi Supreme Court recognized the import of the requirement in MRCP 4(c)(5) that
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a plaintiff mark the certified mail receipt as “restricted delivery”. See Bloodgood v. Leatherwood, No.
2008-IA-01811-SCT, ¶ 13 (January 21, 2010) (copy attached as Appendix “A” to this Amended
Motion). The certified mail receipt submitted by Plaintiffs contains no such marking, and Plaintiffs
have failed to submit any proof to satisfy MRCP 4(c)(5) and KRCP 4.01(1)(a). This Court should
strike the Scruggs Return II.
FOR THESE REASONS, Defendants request that this Court strike the returns of summons
as to Defendant Richard F. Scruggs filed by Plaintiffs on Monday, January 25, 2010 (Dkt. Nos. 23
and 26). Defendants request such other relief as the Court deems appropriate under the
circumstances.
THIS, the 26th day of January, 2010.
RICHARD F. SCRUGGS AND SMBD, INC.
/s/ J. Cal Mayo, Jr.
J. CAL MAYO, JR. (MB NO. 8492)
POPE S. MALLETTE (MB NO. 9836)
PAUL B. WATKINS (MB NO. 102348)
Attorneys for Defendants
OF COUNSEL:
MAYO MALLETTE PLLC
2094 Old Taylor Road
5 University Office Park
Post Office Box 1456
Oxford, Mississippi 38655
Telephone: (662) 236-0055
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CERTIFICATE OF SERVICE
I, J. CAL MAYO, JR., one of the attorneys for Defendants Richard F. Scruggs and SMBD,
Inc., do certify that I have electronically filed the foregoing document with the Clerk of the Court
using the ECF system, who forwarded a copy of same to the following:
James R. Reeves, Jr.
Matthew G. Mestayer
Lumpkin, Reeves & Mestayer, PLLC
160 Main Street
P.O. Drawer 1388
Biloxi, Mississippi 39533
ATTORNEYS FOR PLAINTIFFS
THIS, the 26th day of January, 2010.
/s/ J. Cal Mayo, Jr.
J. CAL MAYO, JR.
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