Opinion
Case No. 1:13-cv-32
07-29-2013
JAMES W. LLOYD, Plaintiff, v. YRC FREIGHT-CINTI, Defendant.
Barrett, J.
Bowman, M.J.
MEMORANDUM ORDER
Plaintiff has filed a pro se complaint against his former employer, identified as Defendant "YRC Freight-Cinti," alleging that he was discharged in violation of 42 U.S.C. §2000e-5(f)(1) in violation of his civil rights after 27 years of employment with that company. Plaintiff alleges that he was wrongfully discharged based upon "trumped up charges" from a racist co-worker. (Doc. 3 at 2). Plaintiff further alleges that after transferring from Detroit, Michigan to Cincinnati, Ohio in 2008, he was subjected to harassment based upon his "race & age." (Id. at 3). Attached to Plaintiff's complaint is a "Dismissal and Notice of Rights" apparently dated October 19, 2012, indicating the closure of Plaintiff's EEOC charge based upon the adoption of "the findings of the state or local fair employment practices agency that investigated this charge." (Doc. 3 at 4).
The date on the Notice is essentially illegible. The listed date is based upon the decipherable portion.
On January 25, 2013, after granting Plaintiff leave to proceed in forma pauperis, the undersigned directed the United States Marshal to serve the Defendant as directed by the Plaintiff. The summons form completed by Plaintiff indicates that service was to be made on "YRC Freight - Cincinnati, 10074 Princeton-Glendale 747 Cinti., OH 45246," at the same street address identified on the EEOC's Notice of Rights form. In contrast to the summons form, the EEOC Notice was addressed to the company's "Human Relations Director."
For unknown reasons, the "green card" reflecting proof of service was not returned to the Court, but on July 23, 2013, a "track and confirm" receipt from the U.S. Postal Service was docketed, reflecting service by mail of the summons and complaint on March 13, 2013. (Doc. 5). Based upon that date of service, the answer to the complaint would have been due on or before April 3, 2013, a date that has long since passed with no answer or responsive pleading ever having been received.
When a party has failed to file an answer, "and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Rule 55(a), Fed. R. Civ. P. (emphasis added). After entry of default by the Clerk of Court, a party may move for a default judgment under Rule 55(b), Fed. R. Civ. P. Before either entry of default or default judgment, however, the Court must be satisfied that the complaint was properly served. In this case, the Defendant is a corporation, which ordinarily may be served by delivering a copy of the summons and complaint to "an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process...." Rule 4(h), Fed. R. Civ. P. The summons form completed by the pro se Plaintiff in this case is addressed not to any individual who may be an officer or agent, but simply to the company itself. Therefore, it appears unlikely that service has been properly perfected.
Rule 4(m) of the Federal Rules of Civil Procedure provides in pertinent part as follows:
If a defendant is not served within 120 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 against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Id.
"Unless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights." Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 351, 119 S. Ct. 1322 (1999). Indeed, absent either waiver or proper service of process, this Court does not have personal jurisdiction over this Defendant. See Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991) (and cases cited therein). Plaintiff bears the burden of exercising due diligence in perfecting service of process and in showing that proper service has been made. See Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996); Jacobs v. University of Cincinnati, 189 F.R.D. 510, 511 (S.D. Ohio 1999).
As stated, the record reflects serious doubt as to whether the Defendant has ever properly been served with Plaintiff's complaint, due to Plaintiff's failure to identify any individual by name or by title on the summons form, and the lack of a return receipt identifying the person who may have received the mailed service. Plaintiff himself has taken no further steps to prosecute this case in the six months since initiating suit.
At this point, the time for achieving service under Rule 4(m) has expired. However, because Plaintiff proceeds pro se and at least some of the delay in completing service was caused by delay in filing the proof of delivery of the summons and complaint to the company, Plaintiff should be given additional time in which to perfect service on his former employer.
Accordingly, IT IS ORDERED THAT:
1. On or before August 20, 2013, Plaintiff shall complete and return to the Clerk a copy of a new summons form, identifying by name or by title the person or persons at "YRC Freight Cincinnati" on whom service is sought;
2. In light of this Court's prior order granting Plaintiff's motion for leave to proceed in forma pauperis (Doc. 2), the Clerk shall transmit the new summons form to the U.S. Marshal for service as directed by the Plaintiff, together with a copy of this order and a copy of the complaint;
3. If Plaintiff fails to timely submit a new summons form to the Clerk of Court, he is forewarned that his case may be dismissed for failure to comply with this order, for failure to timely perfect service, and/or for failure to prosecute.
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Stephanie K. Bowman
United States Magistrate Judge