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Mannina v. Safeway Co.

United States District Court, D. Delaware

July 11, 2019

TONYA MARIE MANNINA, Plaintiff,
v.
SAFEWAY COMPANY, Defendant.

          Tonya Marie Mannina, Wilmington, Delaware. Pro Se Plaintiff.

          Dean J. Shauger, Esquire, Ogletree, Deakins, Nash, Smoak & Stewart, Philadelphia, Pennsylvania. Counsel for Defendant.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE.

         Plaintiff Tonya Marie Mannina filed this employment discrimination action pursuant to 42 U.S.C. §§ 12101, et seq. (D.I. 2). Plaintiff appears pro se and has paid the filing fee. Before the Court is Defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(4) and 12(b)(5). (D.I. 15). Plaintiff has filed a motion for leave to file an amended complaint and to apply the pending motion to dismiss to her proposed amended complaint. (D.I. 17). Briefing is complete.

         BACKGROUND

         Plaintiff sought leave to proceed in forma pauperis when she commenced this action. (D.I. 1). The motion was denied on My 14, 2018, and Plaintiff paid the filing fee on June 6, 2018. (D.I. 4). On August 24, 2018, Plaintiff moved to extend time to serve Defendant. (D.I. 5). The motion was granted on August 30, 2018, and Plaintiff was given 45 days from the date of the order to effect service. (D.I. 6). On October 1, 2018, when Plaintiff sought a second extension of time to serve Defendant, she was given 30 days from the date of the October 3, 2018 order. (D.I. 7, 8).

         On November 9, 2018, the Court entered an order for Plaintiff to show cause why the case should not be dismissed for failure to prosecute. (D.I. 9). In turn, Plaintiff filed a third motion for an extension of time to serve Defendant. (D.I. 10). Plaintiff was given 45 days from the date of the November 27, 2018 order to serve Defendant and warned that if Defendant was not served the case would be dismissed without prejudice. (D.I. 11). Plaintiff was also advised the Court would not grant further motions to extend the time to serve Defendant. (Id.). On January 16, 2019, Plaintiff filed a proof of service that Defendant had been served via certified mail on January 9, 2019. (D.I. 14).

         The declaration of Stephanie Ridore, Safeway, Inc.'s Director Government Affairs and Labor Relations, states that on January 9, 2019, she received an envelope addressed to her at an address in Lanham, Maryland, containing service documents for case. (D.I. 16-1 at 2). The service documents were delivered by certified mail and signed for by John Jackson, not Ridore. (D.I. 14 at 2). The documents included a summons, a notice, consent, and reference of a dispositive motion to a magistrate judge form, and notice of electronic filing. (D.I. 16-1 at 2). The envelope did not contain a copy of the Complaint. (Id.).

         Ridore states that she is not authorized to receive service of process on behalf of Safeway and she is not the resident agent, president, secretary, or treasurer of Safeway. (Id. at 3). Ridore states that Safeway is incorporated in the State of Delaware and has appointed The Corporation Trust Company as its registered agent authorized to receive process in the State of Delaware. (Id.).

         Defendant filed its motion to dismiss on January 30, 2019, pursuant to Fed. R. Civ. 12(b)(4) and 12(b)(5) for Plaintiffs failure to serve Defendant as required by Fed. R Civ. P. 4(c)(1) and 4(h). (D.I. 15). Plaintiff did not file an opposition to the motion. Instead, she filed a motion for leave to amend, with an attached proposed amended complaint, and asks the Court to apply the pending motion to dismiss to her proposed amended complaint. (D.I. 17).

         LEGAL STANDARDS

         A defendant may file a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(5) when a plaintiff fails to properly serve it with the summons and complaint. 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). Fed.R.Civ.P. 4(m) imposes a 90-day time limit for perfection of service following the filing of a complaint. If service is not completed within that time, the action is subject to dismissal without prejudice. See id.; see also MCI Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1098 (3d Cir. 1995).

         DISCUSSION

         Defendant moves to dismiss on the grounds that Plaintiff failed to serve it with the complaint and, therefore, did not complete service within the time prescribed. It also moves to dismiss on the grounds that as a corporation Plaintiff did not ...


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