United States District Court, D. Delaware
Jonathan Bryant, Ellendale, Delaware; Pro Se Plaintiff.
Spring Monzo, Esquire, and Roopa Sabesan, Esquire, White
& Williams, Wilmington, Delaware, Counsel for Defendant
Connections Community Support Programs, Inc.
ANDREWS, U.S. DISTRICT JUDGE.
Jonathan Bryant, a former inmate at the Plummer Community
Corrections Center in Wilmington, Delaware, filed this action
pursuant to 42 U.S.C. § 1983. He proceeds pro
se and has been granted leave to proceed in forma
pauperis. On June 29, 2018, Plaintiff was ordered to
show cause why the case should not be dismissed for failure
to prosecute. (D.I. 48). Plaintiff requested a settlement
conference and then filed a response to the show cause order.
(D.I. 51, 52). Defendant Connections Community Support
Programs, Inc. (improperly named as Connections Community
Service Provider of Delaware) filed a letter opposing the
requested settlement conference and, in the letter, seeks its
dismissal on the grounds of improper service. (D.I. 53).
Plaintiff opposes. (D.I. 54).
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 issued, service packets were sent to the United
States Marshals Service, and executed returns were filed on
the court docket that indicated the service packets were
accepted by a Connections' employee. (D.I. 21, 22, 23,
24, 25). Defendants moved for dismissal for insufficient
process and insufficient service of process. (D.I. 29). The
Court denied the motion and entered an order that contained
an address for the personal service of Connections through
its authorized agent, Steven Davis, Esquire. (D.I. 36, 37).
Plaintiff complied with the requisites of the order and
another summons was issued to effect service upon
Connections. (D.I. 39, 46). Connections is the only remaining
defendant, all other defendants having been dismissed.
(See D.I. 11, 37, 45.) In the meantime, Plaintiff
was released from prison. (See D.I. 39).
March 15, 2018, service packets were forwarded to the United
States Marshals Service. The summons for Connections was
returned as executed in care of Steven Davis, Esquire, at
Connections' address. (D.I. 47). The return of service
indicates that the summons was served by a Deputy U.S.
Marshal on Connections' receptionist on March 19, 2018.
29, 2018, the Court ordered Plaintiff to show cause why the
case should not be dismissed for failure to prosecute. On
July 6, Plaintiff telephoned the Clerk's Office and
advised that he had changed his address and had not received
the show cause order. The order was resent to his new
address. On July 11, Plaintiff filed a letter/motion for a
settlement conference. On July 16, he filed a response to the
show cause order. On July 25, Connections responded, objected
to a settlement conference, asserts that it was not properly
served. Plaintiff opposes Connections1 request for dismissal.
Cause. The Court has reviewed Plaintiff's
response to the show cause order and finds that he has shown
cause why this matter should not be dismissed.
Conference. Plaintiff's request for a settlement
conference is premature. Connections has not answered the
Complaint and discovery has not yet commenced.
The Court will deny Connections' letter/motion to dismiss
for improper service. In the past, the Court was advised that
Connections' policy was that it would not waive service
as set forth in Fed.R.Civ.P. 4(d). As a result, Connections
had to be personally served with a summons and complaint. The
record reflects a summons was issued for Connections'
personal service through its attorney, Steven Davis.
Plaintiff has complied with all court orders to serve
Connections. Of note is that Plaintiff proceeds pro
se, has been granted leave to proceed in forma
pauperis, and relies upon the USMS to effectuate
USMS delivered the service packet to Connections'
address, the summons was issued to Connections in care of its
attorney Steven Davis, and the return indicates that
Connections' receptionist accepted the service packet.
Connections states that the receptionist was not authorized
to accept service on behalf of Connections but does not
explain why the service packet was accepted if the
receptionist was not authorized to do so.
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