Opinion
Civil Action 22-1666
05-25-2023
ARTHUR MOSES, Plaintiff, v. AMAZON, 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 November 23, 2022, Plaintiff Arthur Moses submitted a Complaint without paying the filing fee or filing a motion to proceed in forma pauperis (ECF No. 1). On December 2, 2022, a deficiency order was filed (ECF No. 2), directing him to do one or the other and on December 6, 2022, he submitted the filing fee and his Complaint was docketed (ECF No. 4).
In the Complaint, Plaintiff alleges racial discrimination by Defendant Amazon in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (Title VII) and the Pennsylvania Human Relations Act, 43 P.S. §§ 951-63 (PHRA) in various respects, culminating in his termination from employment.
Plaintiff was required to serve Amazon within ninety days after the complaint was filed. Fed.R.Civ.P. 4(m). Because the docket did not reflect that service had been made within ninety days, an order was entered on March 10, 2023 (ECF No. 5), directing Plaintiff to show cause why the case should not be dismissed for failure to serve Amazon. Plaintiff did not submit a response to the show cause order. Rather, he took two actions, neither of which resolved the issue. First, he filed a motion for service by the United States Marshal (ECF No. 6), which was denied by order dated March 20, 2023 (ECF No. 7). Then on March 28, 2023, Plaintiff submitted a receipt indicating that a copy of the Complaint was sent to Amazon by certified mail on March 23, 2023 (ECF No. 8). The docket does not reflect that restricted delivery was requested or that a representative or authorized agent of Amazon accepted and signed for the certified mail.
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, the order denying his motion for marshal service explained the various options available to him to effectuate service (ECF No. 7 at 2). 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/ProSeFiling%20GuideJune2021.pdf.
Plaintiff has previously commenced two other actions in this Court.
According to the Complaint, Amazon 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).
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.
Plaintiff has only submitted a receipt showing that someone sent the Complaint to Amazon by certified mail. He has not, however, submitted a Domestic Return Receipt (“green card”) demonstrating that Amazon actually signed for and accepted service, much less that restricted delivery was requested. Without requiring a receipt to be signed by Amazon 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 Amazon 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 Amazon expired on March 6, 2023. Plaintiff did not serve Amazon 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. In fact, he was granted additional time for service but has failed to show that proper service has
been made. The order denying his motion for marshal service directed him to take the necessary steps to effect service by April 3, 2023, but he did not do so. More than a month has elapsed since that time with no further action having been taken. Therefore, 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 June 12, 2023. Failure to file timely objections will waive the right of appeal.