                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                           UNITED STATES COURT OF APPEALS
                                                                                         March 15, 2007
                                   For the Fifth Circuit
                                                                                    Charles R. Fulbruge III
                                                                                            Clerk

                                           No. 05-50637


                                  NATHANIEL W. ELLIBEE.,

                                                                                Plaintiff - Appellant,

                                             VERSUS

                  MICHAEL LEONARD, ARAMARK Corp. Supervisor;
                     B.C. HOLMES, ARAMARK Corp. Supervisor;
                  LEON LEDAY, ARAMARK Corp. District Supervisor;
           LIONEL JOHNSON, Deputy Warden, Limestone County Detention Center;
             M. HOLMES, Chief of Security, Limestone County Detention Center;
              MICHAEL SUTTON, Warden, Limestone County Detention Center
                                                                     Defendants-Appellees.



                           Appeals from the United States District Court
                                For the Western District of Texas
                                          (04-CV-125)



Before DAVIS, DENNIS and PRADO, Circuit Judges.

PER CURIAM:1

       Plaintiff, Nathaniel Ellibee, a pro se prisoner, appeals the dismissal of his 42 U.S.C. § 1983

action for insufficiency of service of process. FED. R. CIV. P. 4(e). Based on our conclusion that the




       1
           Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
district court abused its discretion by dismissing the case for failure to effect service of process, we

reverse and remand for further proceedings.

                                                  I.



       Nathaniel W. Ellibee, Kansas prisoner #55052, filed the present civil action pursuant to 42

U.S.C. § 1983. At the time he filed this civil action, Ellibee was in the custody of the state of Kansas

but incarcerated at the Limestone County Detention Center (Limestone) in Groesbeck, Texas.

Ellibee sued Michael Leonard, B.C. Holmes, and Leon LeDay, three employees of Aramark Corp.

who worked or previously worked at Limestone (the Aramark defendants) as well as Limestone

Assistant Warden Lionel Johnson, Limestone Chief of Security M. Holmes, and Limestone Warden

Michael Sutton, three employees of CiviGenics-Texas, Inc. (the CiviGenics defendants), the private

company that administered Limestone.

       Ellibee moved for leave to proceed in forma pauperis (IFP) and the district court granted the

motion. The magistrate judge ordered the United States Marshal (USM) to serve process upon all

of the defendants as directed by Ellibee. Ellibee requested that the USM serve all of the defendants

at Limestone, even though he noted on the service request forms that M. Holmes and Leonard were

no longer employed at Limestone and that LeDay did not primarily work at Limestone. He further

noted that the staff at Limestone would know M. Holmes’s home address and that M. Holmes’s

mother was a local judge. He stated that the staff at Limestone would have the correct home

addresses or current employment addresses for Leonard and LeDay. The USM attempted to serve

the defendants by certified mail addressed to Limestone, and Cynthia Carrillo, a CiviGenics employee




                                                   2
at Limestone signed the return receipts for the certified mail service for all of the defendants on July

15, 2004.

       B.C. Holmes filed an answer to Ellibee’s complaint that did not raise any defense based upon

insufficient service of process. The CiviGenics defendants filed a motion to dismiss Ellibee’s

complaint for insufficient service of process or alternatively to quash service of process pursuant to

FED. R. CIV. P. 12(b)(5). The CiviGenics defendants asserted that service of process was insufficient

because Carrillo did not have authority to sign for certified mail to them and had not been appointed

as an authorized agent for accepting service of process for them. They further stated that an

unknown CiviGenics employee had forwarded M. Holmes’s summons and complaint to his mother

and that M. Holmes had not appointed his mother as an authorized agent for accepting service of

process.

       Ellibee responded to the motion to dismiss by noting that the CiviGenics defendants did

receive notice of the civil action and by arguing that he should not be held responsible for any failure

of the USM to properly effectuate service. He also requested that Carrillo be investigated to

determine whether she intentionally obstructed justice by signing the return receipts on behalf of the

defendants without authorization. In this pleading, Ellibee pointed out that defendant B.C. Holmes

filed an answer without any objection to the service of process.

       Ellibee moved for a court order compelling the USM to verify that the defendants had been

properly served with process. Ellibee moved for a default judgment against the CiviGenics

defendants because they acknowledged that they had notice of the civil action but did not file an

answer. Ellibee subsequently filed separate motions for default judgments against Leonard and

LeDay. He moved for summary judgment against B.C. Holmes, arguing that B.C. Holmes’s answer


                                                   3
did not provide evidence or argument to counter his claims, and also that B.C. Holmes failed to raise

any affirmative defense.

       Service of process was returned upon Leonard and LeDay unexecuted. Leonard and LeDay

then filed a motion to dismiss the complaint or, alternatively, to quash service of process. B.C.

Holmes filed a motion to amend his answer and an amended motion to amend his answer, both

seeking to raise a defense based upon insufficient service of process.

       Ellibee subsequently filed a motion requesting the court to address the service of process

issue. He requested that the court either rule that service of process was sufficient or, in the

alternative, order the USM to effect personal service upon the defendants.

       The magistrate judge granted B.C. Holmes’s motion to amend his answer. In that order, the

magistrate judge noted that Ellibee had failed to properly serve the defendants and “belligerently

refused to do so after becoming aware of the defects.” The magistrate judge also denied Ellibee’s

motion for an order compelling the USM to verify that the defendants had been properly served with

process, noting that while Ellibee was entitled to rely upon the USM to effect service, he was required

to remedy any apparent defect in service and could not compel the USM to coach him in the proper

manner of serving the defendants.

       On November 1, 2004, the magistrate judge recommended that Ellibee’s attempted service

on all of the defendants be quashed, that Ellibee’s motions for default judgment be denied, and that

Ellibee’s motion for summary judgment against B.C. Holmes be denied. He ruled that none of the

defendants had been properly served and that Ellibee had refused to cure the defective service when

notified of the problem. He instructed Ellibee to properly serve the defendants by November 26,




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2004, and warned Ellibee that the case could be dismissed if he failed to properly serve the

defendants.

        Ellibee filed a timely objection to the magistrate judge’s report and recommendation. In his

objection, he stated that he had no ability to serve the defendants due to his incarceration and

requested that the USM execute personal service on the defendants. Ellibee attached a letter he had

sent to the USM on August 18, 2004, to his objection. In that letter, Ellibee questioned why the

USM did not restrict delivery to the addressee only when attempting to serve the defendants by

certified mail and why the USM did not use the information he gave them regarding Leonard and

LeDay in order to obtain an address at which they could be served.

        On March 4, 2005, the district court adopted the report and recommendation of the

magistrate judge, denied Ellibee’s motions for default judgment, denied Ellibee’s motion for summary

judgment against B.C. Holmes, and dismissed Ellibee’s claims against the CiviGenics defendants

without prejudice for insufficiency of service of process. It ruled that Ellibee had been notified of the

defects in service of process and had refused to properly cure them despite having ample time to do

so. The district court did not address whether Ellibee had properly served the Aramark defendants.

        Ellibee filed a motion to alter or amend judgment pursuant to FED. R. CIV. P. 59(e) on March

16, 2005. In that motion, he objected to the dismissal of his claims against the CiviGenics defendants

and requested a clarification as to which claims had not been dismissed. Ellibee stated that he had

given all the information regarding the defendants that he had to the USM, had written the USM, and

had filed motions with the court once he learned that there was a problem with service of process.

He further noted that the USM’s original returns of service for all of the defendants indicated that the

defendants had been served and argued that he was entitled to rely upon this representation by the


                                                   5
USM. The district court denied Ellibee’s motion on April 1, 2005. On April 8, 2005, Ellibee filed

a notice of appeal from the district court’s order denying his motion to alter or amend judgment.

        The CiviGenics defendants filed a motion for entry of a final judgment regarding Ellibee’s

claims against them pursuant to FED. R. CIV. P. 54(b) on March 24, 2005. On April 22, 2005, the

district court granted the motion and at the court’s direction, the clerk duly entered a final judgment

in favor of the CiviGenics defendants on April 28, 2005. On May 12, 2005, Ellibee filed an amended

notice of appeal, seeking to appeal from the district court’s order denying his motion to alter or

amend judgment, the district court’s order directing entry of final judgment, and “any other

despositive [sic] ruling entered by the district court.”

        On April 20, 2005, the Aramark defendants filed a motion for reconsideration and clarification

of the district court’s March 4, 2005 order, requesting that the claims against them also be dismissed

for insufficiency of service of process. The district court granted the motion and ordered that the

claims against all of the defendants be dismissed on May 26, 2005. On the same day, the clerk of

court duly entered a final judgment in favor of all of the defendants. On June 8, 2005, Ellibee filed

a second amended notice of appeal, seeking to appeal from “any and all dispositional orders of the

district court,” specifically including the May 26, 2005, order dismissing his claims against all of the

defendants.

                                                  II.

        The CiviGenics defendants argue that this court does not have jurisdiction over Ellibee’s

appeal of the dismissal of his claims against them because he did not file a timely and proper notice

of appeal from the judgment in their favor. They assert that while Ellibee filed three notices of appeal

that specificallyreferenced many different orders and rulings being appealed, Ellibee never specifically


                                                   6
designated that he was appealing from the April 28, 2005, judgment entered in their favor. While

they acknowledge that Ellibee’s second amended notice of appeal contains a provision seeking to

appeal from all adverse rulings, they argue that it was not timely because it was filed more than 30

days after the judgment in their favor was entered.

       A notice of appeal is required to “designate the judgment, order, or part thereof being

appealed.” FED. R. APP. P. 3(c)(1)(B). This requirement, however, is not jurisdictional and “a

mistake in designating a judgment appealed from should not bar an appeal as long as the intent to

appeal a specific judgment can be fairly inferred and the appellee is not prejudiced by the mistake.”

Turnbull v. United States, 929 F.2d 173, 177 (5th Cir. 1991). Such a mistake in designating the

proper judgment can be corrected “by an indication of intent in the briefs or otherwise.” United

States v. Rochester, 898 F.2d 971, 976 n.1 (5th Cir. 1990).

       On May 12, 2005, Ellibee filed an amended notice of appeal, appealing the denial of his

motion to alter or amend judgment, the April 22, 2005, order directing that judgment be entered in

favor of the CiviGenics defendants, and “any other despositive [sic] ruling entered by the district

court.” As Ellibee designated the order directing that judgment be entered in favor of the CiviGenics

defendants as an order from which he was appealing, his intent to appeal the judgment in favor of the

CiviGenics defendants can be easily and fairly inferred. See Turnbull, 929 F.2d at 177. The

CiviGenics defendants have not argued that they suffered any prejudice from any mistake in

designating the judgment and have briefed the underlying issues. Thus, Ellibee’s amended notice of

appeal was sufficient to appeal the judgment in favor of the CiviGenics defendants. See Turnbull, 929

F.2d at 177. While the CiviGenics defendants correctly note that Ellibee’s second amended notice

of appeal was not timely regarding the judgment in their favor, this is irrelevant as Ellibee’s amended


                                                  7
notice of appeal was sufficient. See id.; FED. R. APP. P. 4(a)(1)(A) (notice of appeal must be filed

within 30 days of judgment). The argument is without merit.

                                                  III.

        Ellibee argues that service of process upon the CiviGenics defendants and B.C. Holmes was

sufficient given the circumstances. He asserts that these defendants each personally received a copy

of the summons and complaint from a person who was not a party and was at least 18 years of age.

He maintains that Johnson, Sutton, and B.C. Holmes all were served personally by Carrillo and that

M. Holmes was served by his mother. He further contends that he sued all of the defendants in their

personal and official capacities and that none of the defendants argued that service of process upon

them in their official capacities was insufficient.

        As the defendants were individuals within a judicial district of the United States, service upon

them was governed by FED. R. CIV. P. 4(e). Pursuant to that rule, service of process may be effected

by: (1) serving the defendant pursuant to the laws of the state in which he is located, in this case

Texas; (2) personal service upon the defendant; (3) leaving copies of the service documents at the

defendant’s residence with a person of suitable age and discretion; or (4) delivering the service

documents to an agent of the defendant authorized to accept service by appointment or by law. Id.

Under Texas law, service of process may be effected by personal service upon the defendant or by

mailing the service documents to the defendant by certified mail, return receipt requested. TEX. R.

CIV. P. 106(a). If service by one of those two methods fails, Texas law allows for substituted service

upon a motion supported by an affidavit by leaving a copy of the service documents at the defendant’s

residence or place of business or in any other manner deemed to be reasonably effective to give the

defendant notice. TEX. R. CIV. P. 106(b). Whether service of process upon the defendants was


                                                      8
sufficient is an issue of law that this court reviews de novo. Maiz v. Virani, 311 F.3d 334, 338, 340

(5th Cir. 2002).

        Nothing in the record indicates that service of process was effectuated upon the CiviGenics

defendants or B.C. Holmes by leaving copies of the service documents at their residences with a

person of suitable age and discretion. Furthermore, the CiviGenics defendants averred that Carrillo

was not appointed as their agent authorized to accept service of process and Ellibee points to no

evidence showing that she was an agent authorized to accept service of process for any of the

defendants or that any properly authorized agent of the defendants was served with process.

Additionally, the record shows that Ellibee never filed a motion for substituted service under Texas

law. Thus, the only remaining issues are whether the defendants were properly served by personal

service or certified mail service under Texas law. See FED. R. CIV. P. 4(e); TEX. R. CIV. P. 106(a).

        Although the USM attempted to serve the defendants by certified mail, the certified mail

receipts attached to the returns of service were signed by Carrillo, not the defendants. As Texas law

requires a return of service to include a certified mail receipt signed by the addressee when service

is effected by certified mail, none of the defendants were properly served by certified mail. See TEX.

R. CIV. P. 107; Ramirez v. Consol. HGM Corp., 124 S.W.3d 914, 916 (Tex. App. - Amarillo 2004,

no pet.).

        Pursuant to both Texas and federal law, if a defendant is personally served, the person who

serves the defendant must make a return of service verifying that the defendant was personally served.

FED. R. CIV. P. 4(l); TEX. R. CIV. P. 107. While Ellibee argues that Johnson, Sutton, and B.C.

Holmes were all personally served by Carrillo and that M. Holmes was personally served by his

mother, there is no return of service from Carrillo or M. Holmes’s mother in the record. Additionally,


                                                  9
while Ellibee argues that the CiviGenics defendants’ own affidavits show that they were personally

served by Carrillo or M. Holmes’s mother, this is not the case; Johnson and Sutton averred that they

found the service documents in their mailboxes at Limestone, and M. Holmes averred that the service

documents were forwarded to him by his mother.

        Ellibee’s remaining arguments are also without merit. Although all of the defendants may

have received notice of the civil action, actual notice is not sufficient service of process. Way v.

Mueller Brass Co., 840 F.2d 303, 306 (5th Cir. 1988). Additionally, while Ellibee asserts that the

defendants did not object to the sufficiency of service of process in their official capacities, the record

shows that the defendants were employees of private companies, not a state or local government, so

the defendants had no official capacities in which they could be sued. Ellibee has not shown that the

district court erred by ruling that he had not properly effected service of process upon the CiviGenics

defendants and B.C. Holmes.

                                                   IV.

        For the first time on appeal, Ellibee argues that the CiviGenics defendants made a general

appearance by filing a motion to revoke his IFP status, thereby waiving their insufficiency of service

of process defense. Because Ellibee did not raise this argument below, this court reviews for plain

error. See Tilmon v. Prator, 368 F.3d 521, 524 (5th Cir. 2004). To demonstrate plain error, Ellibee

must show: “(1) that an error occurred; (2) that the error was plain, which means clear or obvious;

(3) the plain error must affect substantial rights; and (4) not correcting the error would seriously

affect the fairness, integrity or public reputation of judicial proceedings.” Highlands Ins. Co. v. Nat’l

Union Fire Ins. Co., 27 F.3d 1027, 1032 (5th Cir. 1994) (internal quotation marks and citation

omitted).


                                                   10
       Federal Rule of Civil Procedure 12(b) provides that jurisdictional defenses such as

insufficiency of service of process are not “waived by being joined with one or more other defenses

or objections in a responsive pleading or motion.” The adoption of the Federal Rules of Civil

Procedure thus “abrogated the long-standing waiver rule bypermitting a defendant to seek affirmative

relief without forfeiting an objection to jurisdiction.” Bayou Steel Corp. v. M/V Amstelvoorn, 809

F.2d 1147, 1148 (5th Cir. 1987). The CiviGenics defendants raised the insufficiency of service in a

motion filed before the motion to revoke Ellibee’s IFP status. Accordingly, the CiviGenics

defendants’ motion to revoke Ellibee’s IFP status did not waive their insufficiency of service of

process defense and Ellibee has not shown that the district court committed error, plain or otherwise,

by not ruling that the defense was waived.

                                                  V.

       Ellibee also argues that B.C. Holmes waived his insufficiency of service of process defense

because his initial answer to the complaint did not raise the defense. A party waives a defense based

upon insufficiency of service of process if the defense “is neither made by motion under [FED. R. CIV.

P. 12] nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be

made as a matter of course.” FED. R. CIV. P. 12(h)(1). B.C. Holmes’s initial answer did not raise the

defense of insufficiency of service of process and he did not raise the defense in a pre-answer motion.

Thus, B.C. Holmes waived the defense unless the amendment to his answer, in which he first raised

the defense, was permitted as a matter of course under FED. R. CIV. P. 15(a). See FED. R. CIV. P.

12(h)(1).

       One amendment to a pleading is allowed as a matter of course “at any time before a

responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted


                                                 11
and the action has not been placed upon the trial calendar, the party may so amend it at any time

within 20 days after it is served.” FED. R. CIV. P. 15(a). B.C. Holmes’s answer was a pleading to

which no responsive pleading was permitted, see FED. R. CIV. P. 7(a), so he had 20 days to amend

the answer as a matter of course. See FED. R. CIV. P. 15(a). B.C. Holmes’s initial answer was filed

on August 13, 2004, and he first moved to amend it on September 27, 2004, far more than 20 days

later. Accordingly, as the magistrate judge acknowledged, the amendment to B.C. Holmes’s answer

was not an amendment permitted as a matter of course. See FED. R. CIV. P. 15(a). As B.C. Holmes

did not raise his insufficiency of service of process defense in a pre-answer motion, in his original

answer, or in an amendment to his answer allowed as a matter of course, he waived the defense. See

FED. R. CIV. P. 12(h)(1); Kersh v. Derozier, 851 F.2d 1509, 1511-12 (5th Cir. 1988). Accordingly,

the district court erred by failing to rule that B.C. Holmes had waived his insufficiency of service of

process defense. See Kersh, 851 F.2d at 1511-12.

                                                 VI.

       Ellibee argues that the district court abused its discretion by dismissing his civil action for

insufficiency of service of process.2 He asserts that as a pro se prisoner proceeding IFP, he was

entitled to rely upon the USM to effect service of process and that he provided the USM with

sufficient information to serve the defendants. He further maintains that the district court erroneously

concluded that he had done nothing to correct the insufficient service of process when he had done



       2
           Ellibee styles this argument in numerous ways. To the extent that Ellibee separately
argues that the USM was in contempt, that he was denied access to the courts, or that the clerk of
the district court should be sanctioned in some way, these claims are raised for the first time on
appeal and have no basis in the record. Furthermore, as these arguments require the resolution of
factual issues, Ellibee cannot show plain error. See Robertson v. Plano City, 70 F.3d 21, 23 (5th
Cir. 1995).

                                                  12
everything that he could to serve the defendants. This court reviews a dismissal for insufficiency of

service of process for an abuse of discretion. Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 445 (5th

Cir. 1996).

        A plaintiff proceeding IFP “is entitled to rely upon service by the U.S. Marshals and should

not be penalized for failure of the Marshal’s Service to properly effect service of process, where such

failure is through no fault of the litigant.” Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987).

Nevertheless, once such a plaintiff is aware of possible defects in service of process, he must attempt

to remedy them. Id.

        In Rochon, this court upheld the dismissal of the plaintiff’s case for failure to effect service

of process because the plaintiff did not request that the USM serve the proper defendant after he

became aware that the first attempt at service was unsuccessful. Id. Because the plaintiff did not

attempt to remedy the problem with service of process, this court concluded that his case was

dismissed because of his failure to prosecute not because of the failure of the USM to properly effect

service of process and upheld the dismissal. Id.

        In Lindsey, the other main case in this circuit on this issue, the court reached the opposite

conclusion. Lindsey, 101 F.3d at 446-48. In that case, the district court did not provide the plaintiff

with summons forms and never appointed the USM, or anyone else, to serve process for the plaintiff,

who was a pro se prisoner proceeding IFP. Id. at 445-46. Although the plaintiff did not provide the

proper service addresses for all of the defendants in his complaint, the court found that this defect was

not fatal and that the district court had abused its discretion by dismissing the case because the

plaintiff had diligently attempted to serve the defendants and the district court had not appointed the

USM to effect service of process. Id. at 447-48.


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       In the present case, the district court found that Ellibee, upon being made aware of the defects

in service of process, had not attempted to remedy the situation and instead had argued that service

of process was sufficient. It concluded that Ellibee, like the plaintiff in Rochon, was to blame for the

failure to effect service of process and dismissed the case.

       The record does not support the findings of the district court. Although Ellibee did argue that

service of process was sufficient, the record also shows that Ellibee sent a letter to the USM

questioning whether the attempt at service was sufficient and filed numerous documents with the

court which could be reasonably construed as requesting the court to order the USM to serve the

defendants by personal service. Additionally, when the USM attempted to serve the defendants via

certified mail, the certified mail was not restricted to receipt by the addressee only, a failure that

Ellibee did point out to the USM. While the district court faulted Ellibee for instructing the USM to

serve the defendants at their place of business, it is unclear how Ellibee could have obtained the

defendants’ residence addresses given that he was a prisoner and they were prison employees.

       On these particular facts, we find that the district court erred in dismissing Ellibee’s case for

insufficiency of service of process.

                                                 VII.

       For the foregoing reasons, the judgment of dismissal is reversed and this case remanded to

the district court for further proceedings. The district court should direct the USM to use due

diligence to obtain personal addresses for the defendants and serve the individuals at those addresses.

REVERSED and REMANDED.




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