United States District Court, D. Delaware
Marie Mannina, Wilmington, Delaware. Pro Se Plaintiff.
J. Shauger, Esquire, Ogletree, Deakins, Nash, Smoak &
Stewart, Philadelphia, Pennsylvania. Counsel for Defendant.
ANDREWS, U.S. DISTRICT JUDGE.
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
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).
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).
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
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.).
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).
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).
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