govinfo:USCOURTS-kywd-3_25-cv-00213-0

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF KENTUCKY 
AT LOUISVILLE 
CIVIL ACTION NO. 3:25-CV-00213-CRS 
 
LARRY FORMAN, et al PLAINTIFFS 
v. 
TYLER HITCH, et al DEFENDANTS 
MEMORANDUM OPINION AND ORDER 
 
 The Court dismissed this action without prejudice on January 20, 2026, for failure to serve 
process. Order, DN 25. The plaintiffs, Larry Forman and Larry Forman Law, PLLC, now move to 
amend the Court’s Order seeking reversal of that dismissal under Rule 59(e) of the Federal Rules 
of Civil Procedure. Motion, DN 30. For the following reasons, the Court will deny the plaintiffs’ 
motion. 
BACKGROUND 
 
 The plaintiffs brought this suit against defendants, Tyler and Samina Hitch, Hitch Defense 
Attorneys, and Hitch Attorneys PLLC,  for alleged violations of the parties’ employment 
agreement. DN 1. A week later, the plaintiffs filed the First Amended Complaint. DN 11. The 
defendants moved to dismiss the claims against them , alleging that a valid arbitration agreement 
governed the claims . Motion, DN 12-1. In that motion, the defendants also contended that the 
plaintiffs had not properly served them. Id. at PageID# 134. The plaintiffs  responded to the 
defendants’ motion but did not address or rebut the service objection raised by the defendants. See 
Response, DN 14. The Court found no proof of service as to either the original or the amended 
complaint upon its review of the record. As a result, the Court granted the defendants’ motion and 
dismissed the action without prejudice for failure to serve process. Order, DN 25.  The plaintiffs 
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filed proof of service after the Court’s dismissal. DN 26, 27, 28, 29 . The plaintiffs  now seek  
reconsideration of the Court’s dismissal pursuant to Rule 59(e). Motion, DN 30.  
ANALYSIS 
 
 Motions filed pursuant to Federal Rule of Civil Procedure Rule 59(e) permit district courts 
to correct their own errors, “sparing the parties and appellate courts the burden of unnecessary 
appellate proceedings.” Howard v. United States , 533 F.3d 472, 475 (6th Cir. 2008).  Rule 59(e) 
motions are “extraordinary” in nature and should be “sparingly granted.” Phila. Indem. Ins. Co. v. 
Youth Alive, Inc., 857 F.Supp.2d 647, 655 (W.D. Ky. 2011). Accordingly, granting these motions 
is appropriate if the movant shows (1) a clear error of law; (2) newly discovered evidence; (3) an 
intervening change in controlling law; or (4) a need to prevent manifest injustice. Brumley v. 
United Parcel Service, Inc ., 909 F.3d 834, 841 (6th Cir. 2018) . The plaintiffs  have made no 
assertion that there has been an intervening change in controlling law or that there is new evidence 
available necessitating reconsideration.  Instead, they have asserted that “[r]econsideration is 
warranted to correct clear errors of law and to prevent manifes t injustice.” Motion DN 30 at 
PageID# 281. However, the plaintiffs have  not identified any error of law  or manifest injustice  
grounds for the Court to reconsider its dismissal. See Brumley, 909 F.3d at 841. 
A. Clear Error  
The clear error standard is “exceptionally high.” Barnett v. First Nat’l Bank of Omaha, No. 
3:20-CV-337-CHB, 2022 WL 2111966, at *2 (W.D. Ky. June 10, 2022). To meet this high burden, 
not only is the movant required to establish that errors were made, “ but that these errors were so 
egregious that an appellate court would not affirm the judgment.” Id. (quotations omitted) . In 
particular, “a clear error of law occurs where the original ruling ‘overlooked or disregarded’ some 
‘argument or controlling authority’ or where the moving party ‘successfully points out a manifest 
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error.’” Id. (quoting United States v. Ladeau , No. 3:10 -CR-00242-1, 2012 U.S. Dist. LEXIS 
164281, 2012 WL 5838125, at *2 (M.D. Tenn. Nov. 15, 2012)). 
The plaintiffs  assert that the Court’s dismissal “rests on multiple clear legal errors.” 
Motion, DN 30 at PageID# 281. Specifically, the plaintiffs assert that the Court erred by dismissing 
the case after the plaintiffs served defendants and personal jurisdiction attached, by dismissing the 
case after not providing the plaintiffs with notice of the service deficiency or the opportunity to 
cure it, and by dismissing the case after the defendants waived their objection to the service 
deficiency. Id. at PageID# 284–89. But the plaintiffs’ assertions are unavailing. 
First, the plaintiffs contend that the Court erred by dismissing the action for failure to serve 
process, when they assert that  they served the defendants on April 18, 2025 , prior to the Court’s 
dismissal. Id. at PageID# 281 (citing DN 26, 27, 28, 29). The plaintiffs contend that even if there 
was a service deficiency regarding the amended complaint, that the Court should have applied 
Rule 5—not Rule 4—to that deficiency. Id. But because the Court had no such knowledge of any 
service of process as to the defendants, it did not err as the plaintiffs contend. 
Rule 4 of the Federal Rules of Civil Procedure governs service of a summons and 
complaint. Rule 5 governs the service of pleadings “filed after the original complaint[.]” Fed. R. 
Civ. P. 5(a). In other words, Rule 5 only governs service of pleadings once defendants are properly 
served with the complaint. Proper service also permits courts to exercise jurisdiction over a 
defendant. Omni Capital Int’l Ltd. v. Rudolph Wolff & Co. , 484 U.S. 97, 104 (1987). Proof of 
“proper service of process is not some mindless technicality.” Friedman v. Estate of Presser, 929 
F.2d 1151, 1156 (6th Cir.1991) (quotation and citation omitted). Without valid service, the Court 
is powerless to enter a judgment against a defendant.  
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The plaintiffs identify no errors here because they only filed proof of service after the 
Court’s dismissal. When the Court dismissed the action, the record contained no proof of service 
as to either the original complaint or the amended complaint . The plaintiffs  filed the original 
complaint on April 14, 2025. DN 1. The plaintiffs then filed the amended complaint as a matter of 
right one week late r. DN 11. Between those two dates, t he defendants filed no responses or 
preliminary motions. The defendants alleged that the plaintiffs did not properly serve them. Motion 
to Dismiss, DN 12-1 at PageID# 134. In response to the Motion to Dismiss, the plaintiffs did not 
rebut this allegation or provide proof of service to the Court. See Response, DN 14. Without service 
of process, the Court was unable to acquire jurisdiction over the defendants. See Omni Capital 
Int’l Ltd., 484 U.S. at 104. And without proof of service as to the original complaint, applying 
Rule 5 to the amended complaint would have been improper. Rule  5 does not apply to service of 
process. Rather, the Court may only apply Rule 5 to the amended complaint if the record contained 
proof that the plaintiffs  had served the defendants with the original complaint. The record 
contained no such proof. The plaintiffs had the opportunity to present proof of service to the Court 
in their response to the defendants’ motion. The plaintiffs failed to do so. Thus, they are unable to 
do so now in their Rule 59(e) motion. See Exxon Shipping v. Baker, 554 U.S. 471, 486 n.5 (2008) 
(a Rule 59(e) motion “may not be used . . . to present evidence that could have been raised prior 
to the entry of judgment.”). As a result, the plaintiffs have presented no errors that warrant reversal. 
Next, the plaintiffs contend that the Court’s sua sponte dismissal of their case constituted 
“clear procedural error” in violation of Rule 4(m). Motion, DN 30 at PageID# 288. The plaintiffs 
allege that the defendants did not raise a service objection in their motion. Id. at 287–88. As a 
result, the plaintiffs  assert that the Court sua sponte  dismissed the case without notice or 
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opportunity to cure the service deficiency. Id. But the plaintiffs describe no error here because the 
defendants raised a service objection in their Motion to Dismiss.  
Rule 4 provides that “if a defendant is not served within 90 days after the complaint is filed, 
the court—on motion or on its own after notice to the plaintiff —must dismiss the action without 
prejudice . . . or order that service be made within a specified time.” Fed. R. Civ. P. 4(m).  And 
under Rule 12(b)(5), a district court may dismiss an action for failure to serve the defendants.  
Contrary to the plaintiffs’ assertion, the defendants alerted the Court—and the plaintiffs—
as to the lack of service in their Motion to Dismiss. DN 12-1 at PageID# 134 (“Crucially, no 
defendant has yet received a copy of the Amended Complaint, and instead are relying on 
representations by the media.”). The defendants also moved for dismissal. Id. at PageID# 135 (“For 
the above stated reasons, Defendants respectfully move this Court to dismiss this case .”). The 
plaintiffs responded to that motion but did not rebut this allegation or cure the deficiency. See 
Response, DN 14. The Court reviewed the record and determined that no proof of service existed. 
As a result, the Court granted the defendants’ Motion to Dismiss. Order, DN 25.  
The plaintiffs are  responsible for carefully review ing the defendants’ motion and 
responding to any service objections to avoid dismissal for insufficient service of process. King v. 
Taylor, 694 F.3d 650, 658 (6th Cir. 2012). Had the plaintiffs done so, they would have reviewed 
the record and corrected their service deficiency accordingly. Instead, the plaintiffs did no such 
thing. They failed to provide proof of that service to the Court, even after the defendants brought 
it to their attention. See Omni Capital Int’l Ltd. , 484 U.S. at 104. Despite having sufficient time 
and opportunity to do so, the plaintiffs failed to cure their service deficiencies, and thus, cannot 
now seek reinstatement of this case using evidence that was available to them prior to the Court’s 
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dismissal. See Exxon Shipping, 554 U.S. at 486. The plaintiffs’ lack of diligence in this case is not 
a valid ground for relief under Rule 59(e). 
Finally, the plaintiffs contend that “[e]ven if a service defect existed, Defendants waived 
any objection by appearing and actively litigating the case without timely raising insufficient 
service.” Motion, DN 30 at PageID# 288. The plaintiffs contend that the defendants’ litigation 
conduct, specifically seeking an order compelling arbitration and requesting attorney fees, signals 
that the defendants submitted to the Court’s authority. Motion, DN 30, at PageID# 289. Thus, the 
plaintiffs contend that the Court erred by reviving the defendants’ waived o bjection when it 
dismissed the case. Id. The Court disagrees. 
Generally, a defendant waives an insufficient service of process defense by failing to raise 
it in either a preliminary 12(b) motion or in a responsive pleading. See Fed. R. Civ. P. 12(h)(1). 
Moreover, the Sixth Circuit has held that “[e]ven where a defendant properly preserves a Rule 
12(b) defense by including it in an answer, he may forfeit the right to seek a ruling on the defense 
at a later ju ncture through his conduct during the litigation.” King, 694 F.3d at 658 (footnote 
omitted) (citing Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 60 (2d Cir. 1999)). Forfeiture may 
result from conduct such as appearances, filings, and actions in a district court that constitute “legal 
submission to the jurisdiction of [that] court.” Gerber v. Riordan , 649 F.3d 514, 519 (6th Cir. 
2011) (quoting Days Inns Worldwide, Inc. v. Patel , 445 F.3d 899, 905 (6th Cir. 2006) ). The key 
question is whether the “‘defendant’s conduct prior to raising the defense has given the plaintiff ‘a 
reasonable expectation’ that the defendant will defend the suit on the merits .’” King, 694 F.3d at 
658 (quoting Mobile Anesthesiologists Chi., LLC v. Anesthesia Assocs. of Hous. Metroplex, 
P.A., 623 F.3d 440, 443 (7th Cir. 2010)).  
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Despite the plaintiffs’ contention, the defendants did not waive their service objection in 
this case. The d efendants raised an insufficient service of process defense by including the 
objection in their initial pleading, their Motion to Dismiss. DN 12 -1 at PageID# 134. At no time 
did the defendants file an answer in this case, ask for judgment on the pleadings, or act in a manner 
that indicated they intended to litigate the case fully on the merits. Rather, the defendants sought 
the dismissal of this case  and an order compelling arbitration. See Motion to Dismiss, DN 12-1. 
The defendants’  conduct demonstrated their desire to resolve th e dispute without court 
involvement. See Gerber, 649 F.3d at 519 (holding that a motion to stay pending arbitration does 
not waive a personal jurisdiction challenge because it indicates an intention to seek alternate means 
of resolving a dispute and avoid litigating the case in that jurisdiction).  Thus, the defendants’ 
conduct did not give the plaintiffs a reasonable expectation that they intended to defend the suit on 
the merits. See King, 694 F.3d at 658. 
As to the plaintiffs’  contention that seeking attorney fees is “the clearest evidence of 
waiver,” they identify no clear error here either. Motion, DN 30 at PageID# 289. In support of this 
contention, they rely on three non-binding sister circuit cases: Rates Technology Inc. v. Nortel 
Networks Corp., 399 F.3d 1302 (Fed. Cir. 2005) , Peterson v. BMI Refractories , 124 F.3d 1386, 
1390 (11th Cir. 1997), and Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 61–62 (2d Cir. 1999). Id. 
The Court has reviewed these cases and finds that none of them stand for the proposition for which 
they are cited, nor can the Court find a case that stands for such a proposition. Rather, in Hamilton, 
unlike this case, the Court concluded that the defendant “forfeited its defense of lack of personal 
jurisdiction by participating in extensive pretrial proceedings and forgoing numerous opportunities 
to move to dismiss during the four -year interval that followed its inclusion of the defense in its 
answer.” Here, there were no extensive pretrial proceedings over a n extended period, and the 
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defendants moved for dismissal at their earliest opportunity. In sum, the defendants did not waive 
the defense, and the Court did not err in dismissing the case.  
B. Manifest Injustice 
The plaintiffs also contend that the Court must reverse its dismissal to “prevent manifest 
injustice.” Reply, DN 3 2 at PageID# 304. The Sixth Circuit has stated  that manifest injustice 
requires a “want of equity” or some form of “unfairness.” Volunteer Energy Servs., Inc. v. Option 
Energy, LLC, 579 Fed.Appx. 319, 331 (6th Cir. 2014). But importantly, manifest injustice “does 
not exist where . . . a party could have easily avoided the outcome , but instead elected not to act 
until after a final order had been entered.” Bunn v. Navistar, Inc., 797 F. App’x 247, 258 (6th Cir. 
2020) (quoting Leidos, Inc. v. Hellenic Republic, 881 F.3d 213, 217 (D.C. Cir. 2018)). 
As discussed above, the defendants raised the service of process deficiency in their Motion 
to Dismiss. DN 12-1 at PageID# 134. The plaintiffs responded to the motion but did not address 
the issue of service, nor did they attempt to remedy it until after the Court dismissed the case. See 
DN 14. Because they had ample time and opportunity to do so  prior to the Court’s decision , the 
Court finds that no manifest injustice exists and reversal is not warranted. See Bunn, 797 F. App’x 
at 258. 
CONCLUSION 
 
 For the foregoing reasons, the Court hereby ORDERS that the plaintiffs ’ Rule 59(e) 
motion [DN 30] is DENIED. 
 
April 29, 2026
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