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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

SOUTHERN DIVISION

LEE YOUNG AND CHARLES J. MIKHAIL PLAINTIFFS

V. NO. 1:09-CV-669

RICHARD F. SCRUGGS, INDIVIDUALLY;

SMBD, INC., DIRECTLY AND AS SUCCESSOR

IN INTEREST TO SCRUGGS, MILLETTE BOZEMAN,

AND DENT A/K/A SMBD, AND AS SUCCESSOR IN

INTEREST TO SCRUGGS LEGAL, P.A.; AND

DOE DEFENDANTS 1-20 DEFENDANTS

DEFENDANTS’ AMENDED MOTION TO

STRIKE PURPORTED RETURNS OF SUMMONS

Defendants Richard F. Scruggs and SMBD, Inc. (“Defendants”), request this Court to strike

the purported returns of summons as to Defendant Richard Scruggs filed by Plaintiffs on January 25,

2010 (Dkt. Nos. 23 and 26). In support of this Motion, Defendants state as follows:

1. Defendants filed their Motion to Dismiss and supporting Memorandum Brief on

Monday, December 21, 2009. Plaintiffs responded on Monday, January 4, 2010. Defendants’ served

their rebuttal brief on Tuesday, January 20, 2010.

2. Among other relief sought in their Motion to Dismiss, Defendants have asked this

Court to dismiss Plaintiffs’ claims against Defendant Richard Scruggs for failure to sufficiently serve

Scruggs with a summons and Complaint. Specifically, Defendants have noted that Plaintiffs have

failed to submit a return of service under oath (as required by FRCP 4(l)(1)) and that the certified

mail receipt (attached to their Opposition Brief as Exhibit “A”) does not satisfy FRCP 4(e)(1) and

the relevant Mississippi and Kentucky procedural rules for certified mail service.

Case 1:09-cv-00669-KS-MTP Document 27 Filed 01/26/2010 of 4

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3. On January 25, Plaintiffs filed a return of summons as to Defendant SMBD (Dkt. No.

22) (the “SMBD Return”) and a purported return of summons as to Defendant Richard Scruggs (Dkt.

No. 23) (the “Scruggs Return”).

4. The SMBD Return reflects the testimony under oath of a process server indicating that

she served Charlene Bosarge, an officer in the company. Defendants do not contest service of the

summons and Complaint on Ms. Bosarge for SMBD.

5. In contrast, the Scruggs Return is not signed under oath as required by FRCP 4(l)(1).

See, e.g., Economy Stone Midstream Fuel, LLC v. M/V A.M. Thompson, 2009 WL 973441, *1 (N.D.

Miss. April 9, 2009) (holding FRCP 4(l)(1) requires affidavit from process server); Patterson v.

Brown, 2008 WL 219965, *12 (W.D. N.C. January 24, 2008) (finding attorney’s unsworn assertions

insufficient to satisfy FRCP 4(l)(1)). The Scruggs Return fails to satisfy the requirements of FRCP

4(l)(1), and this Court should strike it.

6. Subsequent to (and no doubt in response to) the filing of Defendants’s Motion to

Strike (Dkt. No. 25) related to the Scruggs Return, Plaintiffs filed yet another purported return of

summons for Defendant Richard Scruggs (Dkt. No. 26) (the “Scruggs Return II”). The process

server (an employee of Plaintiffs’ legal counsel based on her given address) states in conclusory

fashion that she completed service “by certified mail pursuant to FRCP 4, MRCP 4 and KRCP 4” and

attaches a copy of the same mail receipt Plaintiffs previously submitted as Exhibit “A” to their

Opposition to Motion to Dismiss (Dkt. No. 17).

7. As already addressed in Defendants’ Rebuttal Brief, pp. 2-4 (Dkt. No. 21), the

certified mail receipt fails to satisfy both MRCP 4(c)(5) and KRCP 4.01(1)(a). Notably, this past

week the Mississippi Supreme Court recognized the import of the requirement in MRCP 4(c)(5) that


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a plaintiff mark the certified mail receipt as “restricted delivery”. See Bloodgood v. Leatherwood, No.

2008-IA-01811-SCT, ¶ 13 (January 21, 2010) (copy attached as Appendix “A” to this Amended

Motion). The certified mail receipt submitted by Plaintiffs contains no such marking, and Plaintiffs

have failed to submit any proof to satisfy MRCP 4(c)(5) and KRCP 4.01(1)(a). This Court should

strike the Scruggs Return II.

FOR THESE REASONS, Defendants request that this Court strike the returns of summons

as to Defendant Richard F. Scruggs filed by Plaintiffs on Monday, January 25, 2010 (Dkt. Nos. 23

and 26). Defendants request such other relief as the Court deems appropriate under the

circumstances.

THIS, the 26th day of January, 2010.

RICHARD F. SCRUGGS AND SMBD, INC.

/s/ J. Cal Mayo, Jr.

J. CAL MAYO, JR. (MB NO. 8492)

POPE S. MALLETTE (MB NO. 9836)

PAUL B. WATKINS (MB NO. 102348)

Attorneys for Defendants

OF COUNSEL:

MAYO MALLETTE PLLC

2094 Old Taylor Road

5 University Office Park

Post Office Box 1456

Oxford, Mississippi 38655

Telephone: (662) 236-0055


CERTIFICATE OF SERVICE

I, J. CAL MAYO, JR., one of the attorneys for Defendants Richard F. Scruggs and SMBD,

Inc., do certify that I have electronically filed the foregoing document with the Clerk of the Court

using the ECF system, who forwarded a copy of same to the following:

James R. Reeves, Jr.

Matthew G. Mestayer

Lumpkin, Reeves & Mestayer, PLLC

160 Main Street

P.O. Drawer 1388

Biloxi, Mississippi 39533

ATTORNEYS FOR PLAINTIFFS

THIS, the 26th day of January, 2010.

/s/ J. Cal Mayo, Jr.

J. CAL MAYO, JR.


Case 1:09-cv-00669-KS-MTP Document 27-2 Filed 01/26/2010 Page 1 of 12

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