Opinion
Civil Action 2:23-0207
07-06-2023
ARTHUR MOSES, Plaintiff, v. HERITAGE COMMUNITY INITIATIVE, 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 February 9, 2023, Plaintiff Arthur Moses filed a Complaint against Defendant Heritage Community Initiative (“HCI”) (ECF No. 1). In the Complaint, Plaintiff alleges that he was subjected to racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (Title VII) in various respects, culminating in his termination from employment.
Plaintiff was required to serve HCI within ninety days after the complaint was filed. Fed.R.Civ.P. 4(m). On March 13, 2023, he filed a motion for service by the United States Marshal (ECF No. 2), which was denied by order dated March 20, 2023 (ECF No. 3). Then on March 28, 2023, Plaintiff submitted a United States Postal Service certified mail receipt dated March 22,2023 in an apparent attempt to show that service was made (ECF No 4). However, this receipt reflected nothing more than a mailing may have been sent to Braddock, Pennsylvania, the cost of the postage and a certified mail number. Thus, there was no proof of service or other docket entry demonstrating that Plaintiff served HCI with the Complaint, that restricted delivery was requested or that a representative or authorized agent of HCI accepted and signed for certified mail.
The Complaint identifies both Plaintiff and HCI as having addresses in Braddock, Pennsylvania.
As a result, an order was entered on June 14, 2023 (ECF No. 6), directing Plaintiff to show cause why the case should not be dismissed for failure to serve HCI. Plaintiff then submitted an “order” which includes both a response to the show cause order and what appears to be a proposed order (ECF No. 7). As it relates to service, however, this document simply attaches the same receipt that was previously submitted by Plaintiff. Thus, the only document that has been provided by Plaintiff related to service of HCI simply reflects that something was sent by certified mail to an unidentified recipient.
The first page of the “order” combines Plaintiff's argument with a conclusion that HCI has violated the law and includes the name of the undersigned.
B. Discussion
The burden to prove proper service rests with a plaintiff. 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.”)
While a pro se plaintiff is afforded particular leniency, 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).
The Pro Se Package is available at: https://www.pawd.uscourts.gov/sites/pawd/files/ProSeFiling%20GuideJune2021.pdf.
In addition to this resource, the order denying Plaintiff's motion for marshal service sets forth various available options to effectuate service (ECF No. 3 at 2). Thus, Plaintiff was advised or otherwise had access to information about how to effectuate proper service.
According to the Complaint, HCI is a Pennsylvania corporation. Rule 4 of the Federal Rules of Civil Procedure authorizes 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).
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. If service of original process by mail is permitted by a rule of civil procedure, “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 certified mail was sent to “Braddock, Pennsylvania” on March 22, 2023. He has not submitted a Domestic Return Receipt (“green card”) demonstrating that restricted delivery was requested, that a copy of his Complaint was mailed to HCI or that HCI actually signed for and accepted 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 HCI 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). Thus, Plaintiff has failed to demonstrate that he effected proper service on HCI.
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 HCI expired on May 10, 2023. Plaintiff has not served HCI 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).
Plaintiff has not shown good cause for an extension of time. The Court finds no other basis to exercise its discretion to further extend the time for service. As such, this case should be dismissed without prejudice.
III. Conclusion
Therefore, it is recommended that this case be dismissed without prejudice for failure to serve the Defendant.
If Plaintiff wishes to challenge this Report and Recommendation, he must seek review by the district judge by filing objections by July 24, 2023. Failure to file timely objections will waive the right of appeal.