RAYMOND J. BROKENBROUGH, JR. Plaintiff,
CAPITOL CLEANERS & LAUNDERERS INC., Defendant.
Christopher J. Burke UNITED STATES MAGISTRATE JUDGE
In this action filed pursuant to Title VII of the Civil Rights Act of 1964, Plaintiff Raymond Brokenbrough, Jr. ("Plaintiff or "Brokenbrough") brings suit against Defendant Capitol Cleaners & Launderers Inc. ("Defendant" or "Capitol Cleaners"). Presently pending before the Court is Defendant's motion to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5) ("Motion to Dismiss"), (D.I. 10), as well as Defendant's motion to quash service of process pursuant to Rules 12(b)(4) and 12(b)(5) ("Motion to Quash"), (D.I. 15). For the reasons that follow, the Court ORDERS that the Motion to Dismiss be DENIED, that the Motion to Quash be GRANTED, and that Plaintiff be allowed an additional 30 days in which to properly serve Defendant.
On April 17, 2013, Plaintiff, acting pro se, filed a Complaint in this action. (D.I. 2) The Complaint alleged that Defendant engaged in discriminatory acts by failing to promote Plaintiff and by terminating Plaintiffs employment, all due to Plaintiffs race. (Id.) On August 19, 2013, Defendant was served with a summons (the "first summons"), but this service packet did not include a copy of the Complaint. (D.I. 9; D.I. 10 & ex. A)
On September 9, 2013, Defendant filed the Motion to Dismiss, seeking dismissal pursuant to Rules 12(b)(4) and 12(b)(5) due to insufficient process and insufficient service of process. (D.I. 10) Plaintiff filed a responsive brief on September 18, 2013, which, in its entirety, stated: "Due to my mother[']s death, I, am requesting the Clerk to amend caption to properly name defendant and reissue summons[.]" (D.I. 11) The Motion to Dismiss was fully briefed on September 18, 2013. (D.I. 12)
Plaintiff thereafter attempted a second round of service of process, and served a summons (the "second summons") on Defendant on September 19, 2013. (D.I. 13) On September 27, 2013, Defendant filed the Motion to Quash, seeking to quash the second attempted service. (D.I. 15) Plaintiff did not file a responsive brief as to the Motion to Quash.
This case was originally assigned to Judge Leonard P. Stark. The parties thereafter consented to having a United States Magistrate Judge conduct all proceedings in the case, including trial, (D.I. 14), and this Court was designated as the Magistrate Judge assigned to the case for that purpose.
A. Motion to Dismiss
Rule 4 of the Federal Rules of Civil Procedure sets out the federal courts' requirements for summons and service of process. Fed.R.Civ.P. 4; see also Cockerham v. Rose, Civil Action No. 3:ll-CV-277-B, 2011 WL 1515159, at *1 (N.D. Tex. Apr. 18, 2011). If a plaintiff fails to comply with Rule 4, a defendant may seek to dismiss the plaintiffs claims under Rules 12(b)(4) and 12(b)(5). Cockerham, 2011 WL 1515159, at *1; Carter v. Keystone, Civil Action No. 05-311-MPT, 2007 WL 956430, at *1 (D. Del. Mar. 29, 2007). It is well settled that district courts, upon determining that process or service of process was deficient, have broad discretion in deciding whether to dismiss the complaint for insufficient service. See, e.g., Alston v. Pepper, — F.Supp.2d —, Civ. No. 13-483-SLR, 2013 WL 5956226, at *2 (D. Del. Nov. 4, 2013); Johnson v. Med. Dep't, No. Civ. A. 02-369-KAJ, 2004 WL 758339, at *1 (D. Del. Mar. 31, 2004).
Defendant points to two alleged deficiencies in support of its Motion to Dismiss. Defendant first argues that service was facially deficient under Federal Rule of Civil Procedure 4(c)(1) because although the first summons was served along with a packet of documents, that service packet did not include a copy of the Complaint. (D.I. 10 at ¶ 2) Defendant further claims that this service was untimely under Federal Rule of Civil Procedure 4(m) because Defendant was not served until 124 days after the instant action commenced. (Id. at ¶ 3)
Rule 4(c)(1) requires that a summons "be served with a copy of the [C]omplaint, " and also makes the plaintiff responsible for having the summons and Complaint served within the time allowed by Rule 4(m). Fed.R.Civ.P. 4(c)(1); Carter, 2007 WL 956430, at *2. Rule 4(m), in turn, provides that "[i]f 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." Fed.R.Civ.P. 4(m).
If a plaintiff has not timely and properly served a defendant, a court must decide whether to extend a plaintiffs deadline to do so pursuant to Rule 4(m). In making this decision, a court engages in a two-part inquiry. Perkins v. Del. DHSS/DSSC, Civ. Action No. 12-50-SLR-CJB, 2012 WL 4482801, at *6 (D. Del. Sept. 27, 2012). First, it must determine whether there is good cause for the failure of proper service; if so, the court must extend the time for service and the inquiry is complete. Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995); Perkins, 2012 WL 4482801, at *6. Second, if no good cause is found, the court may, at its discretion, either grant an extension for service or dismiss the case without prejudice. Perkins, 2012 WL 4482801, at *6; Thompson v. Target Stores, 501 F.Supp.2d 601, 604 (D. Del. 2007).
Here, there is no question that Plaintiff failed to comply with certain of Rule 4's requirements for proper service. He did not comply with Rule 4(c)(1) when he failed to include a copy of the Complaint along with the packet accompanying the first summons. He further failed to comply with the requirements of Rule 4(m) as to that attempted service, in that he served the first summons on Defendant 124 ...