United States District Court, D. Delaware
Jonathan Bryant, Plummer Community Corrections Center,
Wilmington, Delaware; Pro Se Plaintiff.
Spring Monzo, Esquire, and Roopa Sabesan, Esquire, White
& Williams, Wilmington, Delaware, Counsel for Defendants.
ANDREWS, U.S. District Judge:
Jonathan Bryant, an inmate at the Plummer Community
Corrections Center, filed this action pursuant to 42 U.S.C.
§ 1983. He proceeds pro se and has been granted
leave to proceed in forma pauperis. The Court
screened the amended complaint on March 20, 2017, and
identified cognizable and non-frivolous clams. (See
D.I. 18). Defendants move for dismissal for insufficient
process and insufficient service of process. (D.I. 29).
Plaintiff opposes. (D.I. 31). Briefing on the matter is
March 20, 2017, the Court screened the amended complaint,
identified cognizable and non-frivolous clams, and entered a
service order for five medical defendants. (See D.I.
18). Summonses were issued and service packets were sent to
the United States Marshals Service on May 2, 2017. Executed
returns were filed on the court docket on May 23, 2017. (D.I.
21, 22, 23, 24, 25). The returns indicate the service packets
were accepted by Ryan McBride.
move to dismiss the claims against medical Defendants for
insufficiency of service pursuant to Fed.R.Civ.P. 4(e) and
Fed.R.Civ.P. 12(b)(5), on the grounds that the service
packets were delivered to a Connections' employee who is
not an agent authorized to accept service on behalf of the
medical defendants. (D.I. 29). In addition, Defendants
indicate that it is unable to identify an employee referred
to by Plaintiff as Ms. Callahan. (Id.).
defendant may file a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(5) when a plaintiff fails to properly
serve him or her with the summons and complaint. See
Fed. R. Civ. P. 12(b)(5). 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). Rule 4(m)
imposes a 90-day time limit for perfection of service
following the filing of a complaint. Fed.R.Civ.P. 4(m). If
service is not completed within that time, the action is
subject to dismissal without prejudice. Id. See also MCI
Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086,
1098 (3d Cir. 1995).
Court has been advised that it is the policy of Connections
that it, and its employees, will not waive service as set
forth in Fed.R.Civ.P. 4(d). As a result, Connections and its
employees must be personally served with a summons and
complaint. The record reflects summonses were issued so
Defendants could be personally served by the United States
Marshal Service. The Court notes that in attempting to effect
service, Plaintiff has complied with all court orders to
in an incarcerated individual. As an incarcerated individual,
he must rely upon the USMS to effectuate service. The USMS
delivered the service packets for Defendants to Ryan McBride,
an individual employed by Connections Community Support
Programs, Inc. Defendants state that McBride is not
authorized to accept service on behalf of Defendants.
Defendants do not indicate why McBride accepted the service
packet when he was not authorized to accept service.
Rule 12(b)(5), the Court has "broad discretion" in
deciding whether to dismiss the complaint for insufficient
service. See Umbenhauer v. Woog, 969 F.2d 25, 30 (3d
Cir. 1992). The Third Circuit has instructed that
"dismissal of a complaint is inappropriate when there
exists a reasonable prospect that service may yet be
obtained." Id. Given that instruction, the
Court will deny the motion to dismiss for insufficient
service of process.
to Fed.R.Civ.P. 4(d), Defendants were required to waive
service. They have taken the position that they will not
waive service despite the fact that Rule 4(d) affirmatively
imposes the "duty to avoid unnecessary expenses of
serving the summons" upon the defendants. Id.
If defendant "fails, without good cause, to sign and
return [the] waiver" requested by plaintiff within a
"reasonable time, " the court "must impose on
[defendant]": (A) the "expenses later incurred in
making service"; and (B) the "reasonable expenses,
including attorney's fees, of any motion required to
collect those service expenses." See Fed. R.
Civ. P. 4(d)(1)(F), 4(d)(2)(A), 4(d)(2)(B). In light of the
foregoing, Plaintiff will be given another opportunity to
personally serve Defendants (with the exception of Ms.
Callahan who is not identified as a Connections'
employee). Also, given Defendants' position on waiver of
service of summons under Fed.R.Civ.P. 4(d) in the first
instance, each served defendant will be assessed service fees
as allowed by the Federal Rules of Civil Procedure.
the Court has a responsibility to assist pro se
plaintiffs in the service of process. See Murray v.
Pataki,378 Fed.Appx. 50, 52 (2d Cir. 2010). This Court
has entered orders to assist pro se plaintiffs in
obtaining addresses of defendants so that service may be
effected. See also In re Johnson, 2001 WL 1286254
(D.C. Cir. Sept. 28, 2001) (district court ordered individual
to indicate where and when he was available for service of
process or to provide district court with name and address of
individual authorized to accept service of process on his
behalf); Palmer v. Stewart, 2003 WL 21279440
(S.D.N.Y June 4, 2003) (court ordered counsel for New York
City to file an affidavit containing name and address to
assist pro se plaintiff in service of process);
Garrett v. Miller, 2003 WL 1790954 (N.D. III. Apr.
1, 2003) (counsel for defendants ordered to provide address
to court to assist pro se plaintiff in obtaining service of
process). Additionally, the Court's inherent power allows
it to enter orders to manage its own ...