United States District Court, D. Delaware
CHRISTOPHER H. WEST, Plaintiff,
ROBERT COUPE, et al, Defendant.
Stephen A. Hampton, Esquire, Grady & Hampton, Dover,
Delaware. Counsel for Plaintiff.
Ophelia Michelle Waters, Deputy Attorney General, Delaware
Department of Justice, Wilmington, Delaware. Counsel for
Defendant Robert Coupe.
Nicholas Robert Wynn, Esquire, White & Williams,
Wilmington, Delaware, Counsel for Defendant Lezlie Sexton.
NOREIKA, U.S. DISTRICT JUDGE.
Christopher H. West, an inmate at the James T. Vaughn
Correctional Center in Smyrna, Delaware, filed this action
pursuant to 42 U.S.C. § 1983. When he commenced this
action, Plaintiff proceeded prose. He is now
represented by counsel. (D.I. 26). Defendant Lezlie Sexton
("Sexton") moves to dismiss on the grounds of
improper service. (D.I. 22). Plaintiff moves to compel Sexton
to produce her address or to provide the name and address of
a person authorized to accept service on her behalf. (D.I.
December 1, 2016, the Court screened the complaint,
identified cognizable and non-frivolous clams, and entered a
service order for Defendants. (D.I. 7). The service packets
were forwarded to the United States Marshals Service
("USMS") pursuant to Fed.R.Civ.P. 4(c)(3). Sexton,
who is identified as the mental health director for
Connections Community Support Programs, Inc.
("Connections"), Delaware Department of
Correction's mental health and medical care contractor,
did not return the waiver of service as required by
Fed.R.Civ.P. 4(d). (D.I. 11).
Court issued a supplemental service order on March 20, 2017,
Plaintiff complied with the order, and the Court issued a
summons for the personal service of Sexton. (D.I. 15, 16).
The service packet was forwarded to the USMS and Sexton's
executed return of service was filed on the court docket
indicating that the service packet was accepted by a
Connections' employee on May 22, 2017. (D.I. 19).
Thereafter, on June 12, 2017, Sexton moved for dismissal for
insufficient service of process. (D.I. 22). It appears that
in response to that motion, Plaintiff filed a motion to
compel (D.I. 25) seeking an address at which to serve Sexton
personally or the name and address of a person authorized to
receive service of process on behalf of Sexton.
seeks dismissal on the grounds that she was not properly
served because service was delivered to a receptionist for
her employer who is not authorized to accept service on her
behalf. (D.I. 22). The Court notes that Sexton did not waive
service of summons as required by Rule 4 and did not provide
good cause for her failure to waive service of summons. As a
result, personal service was required. Plaintiff complied
with all Court orders to serve Sexton. At the time, Plaintiff
proceeded pro se, he had been granted leave to
proceed in forma pauperis, and he relied upon the
USMS to effectuate service.
USMS delivered the service packet to the business address of
Connections, Sexton's employer. The return indicates that
Mr. McBride, who has been identified as Connections'
receptionist, accepted the service packet. Sexton now states
that the receptionist was not authorized to accept service on
her behalf but there is no explanation 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
Court will deny the letter/motion to dismiss for insufficient
service of process and grant Plaintiffs motion to compel.
to Fed.R.Civ.P. 4(d), Sexton was required to waive service.
She did not even though Rule 4(d) affirmatively imposes the
"duty to avoid unnecessary expenses of serving the
summons" upon the defendant. 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). Considering the
foregoing, Plaintiff will be given another opportunity to
personally serve Sexton.
if the address where the receptionist accepted the service
packet is not the correct address for service of Sexton, then
Sexton shall advise the Court of the correct address to
effect service. In the alternative, Sexton, as an employee of
Connections, may opt for service via electronic notification
as set forth ...