The opinion of the court was delivered by: Nancy A. Vecchiarelli United States Magistrate Judge
This case is before the magistrate judge by the consent of the parties. Before the court is the motion of the remaining defendant, Walter Thomas ("Thomas") to dismiss this case pursuant to Fed. R. Civ. P. 4(m) for failure of service. Doc. No. 18. Plaintiff, George Rucker ("Rucker") opposes this motion. Doc. No. 32. For the reasons given below, the court GRANTS defendant's motion and dismisses the case without prejudice.
The parties are in agreement as to the relevant facts in this case except where otherwise noted.
On October 14, 2010, Rucker filed a complaint in the Cuyahoga County Court of Common Pleas against the City of Cleveland ("Cleveland" or "the city") and Thomas, a patrolman with the Cleveland police department. The complaint identified Thomas as "Ptl. Walter Thomas, Bdg. #1874." The Cuyahoga County Clerk's Office sent, via certified mail, a copy of the complaint to "City of Cleveland, Division of Police, 1300 Ontario Street, Cleveland, Ohio 44113." The certified mail return receipt was returned as received by the City of Cleveland and dated October 26, 2010, and the Cuyahoga County Clerk of Courts recorded a docket entry to that effect. Then, on October 29, 2010, the Cuyahoga County Clerk of Courts docketed the following entry: "Certified Mail Receipt No. 16412916 returned 10/29/2010 failure of service on defendant Ptl Walter Thomas Bdg #1874 -- No reason indicated notice mailed to plaintiff(s) attorney" (punctuation in original).
At the time service on Thomas was attempted at 1300 Ontario Street, Thomas had been on sick leave since July 13, 2010. That leave continued until the date of Thomas's retirement, April 12, 2011. At the time Thomas took sick leave, he had been assigned to the Fourth District police station, not to the main police headquarters at 1300 Ontario Street.*fn1
Cleveland removed the case to this court on November 16, 2010. Thomas, through counsel, consented to the removal on November 19, 2010. Thomas also filed an answer on that date. Thomas included as one of his defenses in his answer failure of service.
Defendant Cleveland moved to be dismissed from the case, and the court granted that motion on January 6, 2011. On July 21, 2011, Thomas moved for dismissal based on failure of service. Plaintiff opposes this motion.
While the parties were briefing Thomas's motion to dismiss, plaintiff sought information which would allow it to perfect alternative service upon Thomas. The court ordered Cleveland to provide plaintiff its contact information for Thomas. On September 9, 2011, counsel for Cleveland forwarded to plaintiff's counsel Thomas's last known address, on C.P. On September 15, the city provided the last known telephone number for Thomas.
On September 19, 2011, plaintiff's counsel asked Cleveland for additional information about Thomas's whereabouts. In response, the city sent plaintiff's counsel a letter which said, in relevant part: "Cleveland herein provides the following additional address of Officer Thomas that a supervisor has since provided, without knowledge as to whether it is correct or current . . . ." The address was on Ct. in Cleveland.
On October 5, 2011, the federal clerk of courts sent a summons and complaint to Thomas at the Ct. address. On October 13, 2011, the clerk docketed the return receipt, signed by an unknown individual. The court ordered plaintiff to file an explanation of good service and ordered defendant to respond to that explanation.
The parties have filed an answer and a reply in response to Thomas's motion to dismiss and have filed an explanation of good service and an opposition to that explanation. ...