Friday, June 29, 2007

11th Circuit Upholds Motion to Dismiss for Insufficient Service in Case Involving Pro Se Plaintiff

Per Albra v. Advan, Inc., --- F.3d ----, 2007 WL 1814677 (11th Cir. June 26, 2007):

Albra argues that service to Advan was proper because he mailed a copy of the summons to Advan's registered agent, Wayne Abbott, who was also named as a defendant in the action. . . .

Federal Rule of Civil Procedure 4(c) provides that service of process shall be effected by serving a summons “ together with a copy of the complaint. ... within the time allowed under [Rule 4(m) ] .... by any person who is not a party and who is at least 18 years of age.” Fed.R.Civ.P. 4(c) (emphasis added). A defendant's actual notice is not sufficient to cure defectively executed service. See Schnabel v. Wells, 922 F.2d 726, 728 (11th Cir.1991) (interpreting former Rule 4(j)), superseded in part by rule as stated in Horenkamp v. Van Winkle And Co., Inc., 402 F.3d 1129, 1132 n. 2 (11th Cir.2005). And although we are to give liberal construction to the pleadings of pro se litigants, “we nevertheless have required them to conform to procedural rules.” Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir.2002).

Here, the record demonstrates that Albra, the plaintiff in the suit, served Advan by mailing a copy of the summons without attaching a copy of the complaint. Accordingly, Albra failed to properly effect service upon Advan in accordance with Rule 4(c), and the district court's grant of Advan's motion to dismiss was proper.


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