Opinion
Civil Action 2:23-0636
08-18-2023
ARTHUR MOSES, Plaintiff, v. GORDON'S FOOD SERVICE, Defendant.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE United States Magistrate Judge
I. Recommendation
It is respectfully recommended that the case be dismissed without prejudice for Plaintiff's failure to serve Defendant.
II. Report
A. Relevant Background
On April 18, 2023, Plaintiff Arthur Moses filed a Complaint against Defendant Gordon's Food Service (“GFS”) (ECF No. 1). In the Complaint, Plaintiff alleges that he was subjected to racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (Title VII).
Plaintiff was required to serve GFS within ninety days after the complaint was filed. Fed.R.Civ.P. 4(m). To date, no proof of service has been filed.
An order was entered on August 8, 2023 (ECF No. 4), directing Plaintiff to show cause why the case should not be dismissed for failure to serve GFS. Plaintiff submitted a response to the show cause order (ECF No. 5), but it merely consists of Plaintiff's statement that he “electronically & physically sent the complaint, over to GFS management on Apr 28th, 2023.”No documentation related to proof of service is attached to this filing or has otherwise been submitted by Plaintiff.
The first page of Plaintiff's response is styled as an “Order” that combines Plaintiff's argument with a conclusion that GFS has violated the law and the “signature” of the undersigned. The response also attaches a letter that he received from GFS's counsel on April 18, 2023 apparently responding to his “threats to file a federal lawsuit” and an email he sent to “financeservices account.” Neither of these documents demonstrates effective service.
B. Discussion
The burden rests on the plaintiff to prove proper service. Lampe v. Xouth, Inc., 952 F.2d 697, 701 (3d Cir. 1991) (finding that, in order for the plaintiff to establish proper service of summons and complaint under Pennsylvania law, the plaintiff had to prove that either defendant or his authorized agent signed the receipts); see also McKinnis v. Hartford Life, 217 F.R.D. 359, 361 (E.D. Pa. 2003) (“It is [the] [p]laintiff's burden to show that service was proper.”)
As a pro se litigant, a plaintiff is afforded particular leniency; however, his status does not absolve him of the need to comply with the service rules. See Leach v. Phelan Hallinan Diamond & Jones, LLP, 2020 WL 1875631, at *5 (E.D. Pa. Apr. 15, 2020). As noted by Judge Fischer of this Court: “Even though Plaintiff proceeds pro se, he had access to a Pro Se Manual, which is readily available to the public on the Court's official website, to guide him through the process of completing service on Defendant.” Wormack v. Shinseki, 2012 WL 3877662, at *5 (W.D. Pa. Sept. 6, 2012) (footnote omitted). In addition, this is the third pro se case that Plaintiff has filed since 2022 and in each one, the Court has explained the various options available to him to effectuate service. Thus, Plaintiff cannot contend that he has not been advised about or otherwise had access to information about how to effectuate proper service.
The Pro Se Package is available at: https://www.pawd.uscourts.gov/sites/pawd/files/Pro_SeFiling%20Guide_June2021.pdf.
Assuming that GFS is a Pennsylvania corporation, the Federal Rules of Civil Procedure authorize the use of state methods of service on in-state defendants, including corporations. Fed.R.Civ.P. 4(e)(1), 4(h)(1)(A). In the alternative, service may be made “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 and-if the agent is one authorized by statute and the statute so requires-by also mailing a copy of each to the defendant,” Fed.R.Civ.P. 4(h)(1)(B).
Plaintiff indicates that GFS's address is “3620 William Penn Highway” in Monroeville. According to the GFS website, there is a GFS store at that location. See https://gfsstore.com/locations/monroeville/
Pennsylvania Rule of Civil Procedure 424 provides that service on a corporation shall be made by handing a copy to an executive officer, partner or trustee, the manager, clerk or other person in charge or an agent authorized to receive service of process. “Thus, under Pennsylvania law, a plaintiff may effect proper service on a corporation by handing a copy of the summons and the complaint to an officer or managing or general agent. Proper service cannot be effected through the postal system, including certified mail.” Sampath v. Concurrent Techs. Corp., 227 F.R.D. 399, 402 (W.D. Pa. 2005) (citations omitted). Certified mail also does not satisfy the method of “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 summons” under Rule 4(h)(1)(B). See Moody v. National Elec. Warranty, 2012 WL 4981993, at *4 (W.D. Pa. Oct. 17, 2012).
Moreover, even if service by mail were permitted, Plaintiff has not followed the proper procedures. “Pennsylvania Rule 403 requires . . . a receipt signed by the defendant or his authorized agent.” Lampe, 952 F.2d at 701. As courts have observed, Pennsylvania Rule of Civil Procedure 403 “has been drafted to accommodate the Postal Service Procedures with respect to restricted delivery.” Fox v. Chipotle Mexican Grill, Inc., 2021 WL 706757, at *2 (W.D. Pa. Feb. 23, 2021). “Service by certified mail without restricted delivery is improper.” Id. at *3. Email is not a recognized method for making service.
If GFS is a corporation located outside of Pennsylvania, the Federal Rules of Civil Procedure authorize the use of state methods of service on extra-territorial defendants, including corporations. Fed.R.Civ.P. 4(e)(1), 4(h)(1)(A). In the alternative, service may be made “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 and-if the agent is one authorized by statute and the statute so requires-by also mailing a copy of each to the defendant,” Fed.R.Civ.P. 4(h)(1)(B).
Online searches suggest that GFS's headquarters are located in Michigan. See https://gfsstore.com/locations/gordon-food-service-home-office/ (indicating that GFS's “home office” is located in Wyoming, Michigan.
Pennsylvania Rule of Civil Procedure 404 provides that service outside of Pennsylvania may be effectuated by mail in the manner provided in Rule 403. See also Pa. R. Civ. P. 404(2). Pennsylvania Rule of Civil Procedure 403 states that “[i]f a rule of civil procedure authorizes original process to be served by mail, a copy of the process shall be mailed to the defendant by any form of mail requiring a receipt signed by the defendant or his authorized agent.” Pa. R. Civ. P. 403. “Pennsylvania Rule 403 requires ... a receipt signed by the defendant or his authorized agent.” Lampe, 952 F.2d at 701. As courts have observed, Pennsylvania Rule of Civil Procedure 403 “has been drafted to accommodate the Postal Service Procedures with respect to restricted delivery.” Fox v. Chipotle Mexican Grill, Inc., 2021 WL 706757, at *2 (W.D. Pa. Feb. 23, 2021). “Service by certified mail without restricted delivery is improper.” Id. at *3.
In either event, Plaintiff has submitted only his own statement that he “electronically & physically sent the complaint, over to GFS management on Apr 28th, 2023.” He has not, however, submitted a Domestic Return Receipt (“green card”) demonstrating that GFS actually signed for and accepted service, much less that restricted delivery was requested. Without requiring a receipt to be signed by GFS or its authorized agent, Plaintiff cannot demonstrate that he effected proper service.
In addition, the docket does not reflect that, as required by Rules 4(a)(1) and 4(b), the Plaintiff obtained a summons from the Clerk of Court to be served upon GFS along with the Complaint. “The failure of a plaintiff to obtain valid process from the court to provide it with personal jurisdiction over the defendant in a civil case is fatal to the plaintiff's case.” Ayres v. Jacobs & Crumplar, P.A., 99 F.3d 565, 569 (3d Cir. 1996). See Wormack, 2012 WL 3877662, at *4 (examining docket to determine that no summons issued).
A plaintiff “is responsible for having the summons and complaint served within the time allowed by Rule 4(m).” Fed.R.Civ.P. 4(c)(1). Based upon the date on which this suit commenced, the ninety-day period within which to serve GFS expired on July 17, 2023. Plaintiff did not serve GFS within ninety days. Pursuant to the Federal Rules of Civil Procedure:
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 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.Fed. R. Civ. P. 4(m).
The Court of Appeals has held that “the district court should determine whether good cause exists for an extension of time. If good cause is present, the district court must extend time for service and the inquiry is ended. If, however, good cause does not exist, the court may in its discretion decide whether to dismiss the case without prejudice or extend time for service.” Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995).
Based upon Plaintiff's submissions, he has not shown good cause for an extension of time. Moreover, this is the third case within the last year in which he has failed to take proper steps to effectuate service. See Civ. A. No. 23-207, ECF No. 8 (Report and Recommendation filed recommending that the case be dismissed for failure to make proper service); Civ. A. No. 22-166, ECF No. 9 (same). Therefore, there is no basis for the Court to exercise its discretion to extend the time for making service. Rather, it is appropriate to dismiss the case without prejudice at this time.
III. Conclusion
Therefore, it is recommended that this case be dismissed without prejudice for failure to make service upon the Defendant.
If Plaintiff wishes to challenge this Report and Recommendation, he must seek review by the district judge by filing objections by September 1, 2023. Failure to file timely objections will waive the right of appeal.