Humes-Pollett v. Family Health Center Inc. , 339 F. App'x 490 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 5, 2009
No. 09-60046 Charles R. Fulbruge III
Summary Calendar Clerk
JOY HUMES-POLLETT
Plaintiff-Appellant
v.
FAMILY HEALTH CENTER INC.
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
No. 2:07-CV-00277-ks-mtp
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Joy Humes-Pollett asserts that the district court erred
in refusing to remand this case to Mississippi state court and in granting
defendant-appellee Family Health Center, Inc.’s motion for summary judgment
on her sex and age discrimination claims. For the reasons stated below, we
AFFIRM.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
09-60046
Humes-Pollett argues that the district court erred in refusing to remand
this suit to the Mississippi state court in which it was originally filed because
Family Health Center failed to file a notice of removal within thirty days of the
receipt of service of process as required by 28 U.S.C. § 1446(b). See Murphy
Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347–48 (1999) (“[A]
named defendant’s time to remove is triggered by simultaneous service of the
summons and complaint, or receipt of the complaint, ‘through service or
otherwise,’ after and apart from service of the summons, but not by mere receipt
of the complaint unattended by any formal service.”). We review de novo the
denial of a motion to remand to state court. See City of Clarksdale v. BellSouth
Telecomms., Inc., 428 F.3d 206, 210 (5th Cir. 2005). When considering a motion
to remand, the removing party bears the burden of showing that removal was
proper. Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988).
Humes-Pollett filed her original complaint on August 16, 2007, and an
amended complaint on August 29, 2007, in Mississippi state court. Service was
delivered to an unnamed employee at the offices of Family Health Center on
September 13, 2007. The return on the service of process indicates that it was
delivered to “Family Health Center.” Family Health Center asserts that the
complaint was forwarded to the director of human resources, who in turn
forwarded it to the board of directors on October 5, 2007. Family Health Center
filed a notice of removal on October 24, 2007. The district court held that the
September 13, 2007 service of process was not effective, and that service was
only accomplished on October 5, 2007, when it was forwarded to the board of
directors.
We agree with the district court that service was not effected on
September 13, 2007. Mississippi law dictates whether service of process was
sufficient in this suit. See City of Clarksdale v. BellSouth Telecomms., Inc., 428
F.3d 206, 210–11 (5th Cir. 2005) (“Although federal law requires the defendant
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to file a removal motion within thirty days of service, the term ‘service of process’
is defined by state law. So, to determine whether the city complied with §
1446(b), we must look to see what constitutes service of process on a foreign
corporation under Mississippi law.” (footnote omitted)). Under Mississippi law,
service upon a corporation such as Family Health Center is accomplished “by
delivering a copy of the summons and of the complaint to an officer, a managing
or general agent, or to any other agent authorized by appointment or by law to
receive service of process.” Miss. R. Civ. P. 4(d)(4); see also Miss. Code Ann. §
13-3-49 (“If the defendant in any suit or legal proceeding be a corporation,
process may be served on the president or other head of the corporation, upon
the cashier, secretary, treasurer, clerk, or agent of the corporation, or upon any
one of the directors of such corporation.”). In this case, the evidence indicates
that service was not delivered to a proper corporate agent under Mississippi law
on September 13, 2007. The return on the service of process indicates only that
service was delivered to “Family Health Center” on that date. Service of process
thus was not effected on September 13, 2007 under Mississippi law. See First
Jackson Sec. Corp. v. B.F. Goodrich Co., 176 So. 2d 272, 276 (Miss. 1965)
(holding that defendant corporation had not been properly served when a
secretary received service but failed to deliver the papers to the appropriate
persons because “where the defendant is a corporation the process must be
delivered or served on an official or proper person on behalf thereof”); Anderson
Mercantile Co. v. Cudahy Packing Co., 90 So. 11, 12 (1921) (holding that service
on defendant corporation was insufficient because the return of service did not
indicate what individual received service on behalf of the corporation); see also
City of Clarksdale, 428 F.3d at 208 (“[S]ervice of process was not effected when
the city’s process server left the citation and other papers at the office of
BellSouth’s authorized agent for service, but on a day when the authorized
agent's office was closed.”); Johnson v. Rao, 952 So. 2d 151, 158 (Miss. 2007)
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(holding that service of process was not sufficient because it was delivered to a
receptionist who was not an authorized agent of defendant physician).
It is not clear whether the fortuitous forwarding of service to the proper
recipient may accomplish service under Mississippi law. The district court held
that it could, thus making service in this case effective on October 5, 2007.
Clearly, it is not sufficient simply because the proper recipient receives actual
notice. See Perry v. Andy, 858 So.2d 143, 145–46 (Miss. 2003) (actual notice of
suit through receipt of defective service of process did not satisfy the
requirement of proper service of process); see also Swaim v. Moltan Co., 73 F.3d
711, 719 (7th Cir. 1996) (“Valid service of process comprises more than actual
notice; it requires a legal basis for holding the defendant susceptible to service
of the summons and complaint.”); Way v. Mueller Brass Company, 840 F.2d 303,
306 (5th Cir.1988) (“The defendant’s actual notice of the litigation, moreover, is
insufficient to satisfy Rule 4's requirements.”). We need not resolve that issue
in this case, as the notice of removal would be timely regardless of whether there
was effective service of process on October 5, 2007, or there was never effective
service (with Family Health Center’s voluntary appearance obviating the need
for effective service). See City of Clarksdale, 428 F.3d at 214 & n.15.
Humes-Pollett argues that Family Health Center waived any arguments
about the sufficiency of service by filing an answer to the complaint without
objecting to service of process. A defendant does indeed waive insufficient
service of process as a defense to a claim for relief by filing an answer without
objecting to service of process. See id. at 214 n.15 (“Filing an answer to the
complaint without objecting to service of process does . . . waive a defendant’s
right to object to service of process.” (citing Fed R. Civ. P. 12(h)(1))); Kersh v.
Derozier, 851 F.2d 1509, 1511 (5th Cir. 1988) (stating that “[u]nder Rule 12(h)(1)
(B), the defense of insufficient service of process is waived unless made in a
party’s first responsive pleading or an amendment to a first responsive pleading
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allowed as a matter of course.”); 5C Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1391 (3d ed. 2004) (“[Rule 12(h)(1)] advises a
litigant to exercise great diligence in challenging personal jurisdiction, venue,
or service of process. If that party wishes to raise any of these defenses, that
must be done at the time the first significant defensive move is made—whether
it be by way of a Rule 12 motion or a responsive pleading.”). However, Family
Health Center does not raise the issue of service of process as a defense to a
claim for relief. Indeed, Family Health Center explicitly concedes that service
of process was eventually accomplished (although, as stated above, we are not
so sure). Family Health Center simply contends that the time period for filing
a notice of removal did not begin until it received service of process. Because
such a contention is not a defense to a claim for relief, it is not waived by filing
an answer to a complaint without objecting to service of process.
Having dispensed with Humes-Pollett’s argument that the district court
erred in refusing to remand this case to Mississippi state court, we now turn to
her argument that the district court erred in granting Family Health Center’s
motion for summary judgment. The district court granted Family Health
Center’s motion for summary judgment on the grounds that Family Health
Center offered legitimate, nondiscriminatory reasons for its termination of
Humes-Pollett—failing to carry out her duties after she learned that she would
not be promoted to executive director, undermining the directives of the new
executive director and the mission of the clinic, and insubordination—and that
Humes-Pollett had failed to offer proof that the proffered reasons were a pretext
for discrimination. Humes-Pollett argues that the district court erred in
granting Family Health Center’s motion for summary judgment because the
proffered nondiscriminatory reasons for firing her were “rank generalizations”
that lacked sufficient detail to allow her to show that they were pretextual;
because Family Health Center failed to offer any admissible evidence to support
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its proffered nondiscriminatory reasons for firing her; and because she submitted
sufficient evidence to raise a fact issue as to pretext, including an affidavit by
Humes-Pollett denying each of the alleged deficiencies, and evidence that every
employee fired for dereliction of duties in the three-year period preceding the
filing of this suit was female. This court reviews a district court’s grant of
summary judgment de novo, applying the same standards as the district court.
See XL Specialty Ins. Co. v. Kiewit Offshore Servs., Ltd., 513 F.3d 146, 149 (5th
Cir. 2008); Hirras v. Nat’l R.R. Passenger Corp., 95 F.3d 396, 399 (5th Cir. 1996).
Summary judgment is proper if the record reflects “that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c).
The proffered nondiscriminatory reasons were sufficiently specific. The
reasons were not rank generalizations, but rather specific job-related
deficiencies. Cf. Patrick v. Ridge, 394 F.3d 311, 317 (5th Cir. 2004) (“If the INS
believed—and had verbalized—that Patrick was not ‘sufficiently suited’ to fill
the SRS position because of her experience, credentials, attitude, or some other
such articulable characteristic, the agency’s reason might have provided enough
detail to enable Patrick to attempt to show pretext.”). Further, the summary
judgment evidence supports Family Health Center’s proffered nondiscriminatory
reasons for terminating Humes-Pollett. In her deposition testimony, Humes-
Pollett stated that she took a thirty-day leave of absence after she learned that
she would not be promoted to executive director, and that she failed to perform
the assigned task of having ID badges made for staff members when she
returned. Family Health Center specifically cited that testimony in its motion
for summary judgment.
The evidence submitted by Humes-Pollett is not sufficient to raise a fact
issue as to pretext. Humes-Pollett’s affidavit contains only conclusory and
unsupported general denials. See Clark v. Am.’s Favorite Chicken Co., 110 F.3d
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295, 297 (5th Cir. 1997) (“Unsupported allegations or affidavit or deposition
testimony setting forth ultimate or conclusory facts and conclusions of law are
insufficient to defeat a motion for summary judgment.”). Humes-Pollett’s
statistical evidence, by itself and devoid of any context, is not sufficient to raise
a fact issue as to pretext. See Cheatham v. Allstate Ins. Co., 465 F.3d 578, 583
(5th Cir. 2006) (“These statistics are not probative of discriminatory intent
because they are devoid of context.”); EEOC v. Tex. Instruments, Inc., 100 F.3d
1173, 1185 (5th Cir. 1996) (“The probative value of statistical evidence
ultimately depends on all the surrounding facts, circumstances, and other
evidence of discrimination.”).
Accordingly, the judgment of the district court is AFFIRMED.
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