Paul Ayika v. Johnny Sutton , 378 F. App'x 432 ( 2010 )

Case: 09-50938 Document: 00511111893 Page: 1 Date Filed: 05/14/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 14, 2010
No. 09-50938 Lyle W. Cayce
Summary Calendar Clerk
REVEREND PAUL BENJAMIN CHUKA AYIKA,
Plaintiff - Appellant
v.
JOHNNY SUTTON; DAVID ROSADO; FEDERICK REYNOLDS; SHANNA
L. BEAULIEU,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC 3:09-CV-00171-DB
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff Paul Benjamin Chuka Ayika filed his pro se complaint in the
district court on May 15, 2009. He thereafter filed four executed summonses
with the district court—one for each defendant. The executed summonses listed
Ayika as the process server; alleged that he served process on the defendants via
certified mail, return receipt requested, sent to their places of employment (the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 09-50938
United States Attorney’s Office for the Western District of Texas and the FBI’s
El Paso Office) on May 28, 2009, and June 13, 2009; and included return receipts
that did not bear the defendant’s signatures.1 On September 16, 2009, the
district court issued an order to show cause that directed Ayika to explain why
it should not dismiss the action for failure to properly serve process. After
receiving Ayika’s response, the district court dismissed the action without
prejudice on October 9, 2009, pursuant to Federal Rule of Civil Procedure 4(m).
Ayika appeals.
Ayika’s initial brief wholly fails to address any legal issues relevant to his
appeal, including whether he adequately served process on the defendants or
whether the district court should have dismissed his case. It is axiomatic that
“[a]n appellant abandons all issues not raised and argued in its initial brief on
appeal.” Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994). Although Ayika
at least identifies points of error in his reply brief, Ayika has waived these
arguments for failing to present them in his initial brief. See Piney Woods
Country Life Sch. v. Shell Oil Co., 905 F.2d 840, 854 (5th Cir. 1990); see also
Yohey v. Collins, 985 F.2d 222, 226 (5th Cir. 1993) (“This Court will not consider
a claim raised for the first time in a reply brief.”).
In any event, and alternatively, we find no error in the district court’s
dismissal of this case without prejudice. Federal Rule of Civil Procedure 4(e)
provides that a plaintiff may serve process on an individual in a judicial district
of the United States by:
(1) following state law for serving a summons in an action brought
in courts of general jurisdiction in the state where the district court
is located or where service is made; or
1
On July 22, 2009, the United States Department of Justice informed Ayika that it
believed his attempted service was insufficient and advised him of the proper methods by
which he could effectuate service. Ayika was also advised that the defendants “await proper
service,” meaning that they did not waive service.
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(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to
the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual
place of abode with someone of suitable age and discretion
who resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e). Ayika did not serve process using any of the methods
established in Rule 4(e)(2). Accordingly, Ayika’s attempted serve of process was
sufficient only if it complied with Texas state law.
Texas law authorizes service of process via registered or certified mail,
with return receipt requested. Tex. R. Civ. P. 106(a)(2). The return receipt must
bear the “addressee’s signature.” Tex. R. Civ. P. 107. In this case, service was
addressed to the defendants personally, but their signatures do not appear on
the return receipts. Thus, Ayika’s attempted service was insufficient under Rule
4. We further note that, although the defendants apparently had actual notice
of the insufficient service, the “defendant’s actual notice of the litigation . . . is
insufficient to satisfy Rule 4's requirements.” Way v. Mueller Brass Co., 840
F.2d 303, 306 (5th Cir. 1988).
“If a defendant is not served within 120 days after the complaint is filed,
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). “[I]f
the plaintiff shows good cause for the failure, the court must extend the time for
service for an appropriate period.” Id. As the district court correctly explained,
Ayika failed to present any reasons why it should extend the time period for
filing service, instead arguing only that he properly served the defendants. We
thus find no abuse of discretion in the district court’s decision to dismiss Ayika’s
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action without prejudice. See Triana v. United States, 911 F.2d 1155, 1157 (5th
Cir. 1990) (reviewing the district court’s dismissal of a complaint upon lack of
service for abuse of discretion).
Accordingly, we AFFIRM the judgment of the district court.
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