United States District Court, D. Delaware
Sherine Abdelfattahfathy, Wilmington, Delaware, Pro se
Lindsay Neinast, Esquire, Littler Mendelson, PC, Washington,
DC. Counsel for Defendant.
CONNOLLY, U.S. DISTRICT JUDGE:
Sherine Abdelfattahfathy ("Plaintiff') who appears
pro se and has paid the filing fee, filed this
employment discrimination action on December 11, 2018. (D.I.
1) Defendant St. Michael's School & Nursery, Inc.
("Defendant") moves to dismiss for improper
service. (D.I. 7) Plaintiff opposes.
commenced this action on December 11, 2018. (D.I. 1) The
Complaint was received and file-stamped on December 11, 2018,
but was not docketed until December 12, 2018. The Court
docket reflects that a summons issued on January 14, 2019 and
again on March 14, 2019. On March 21, 2019, the Court entered
an order for Plaintiff to show cause on or before April 18,
2019 why the Complaint should not be dismissed for failure to
serve process as required by Fed.R.Civ.P. 4(m). (D.I. 4) On
April 2, 2019, Defendant filed a motion to dismiss for
improper service and, on April 18, 2019, Plaintiff filed a
combined answering brief and response to the show cause
order. (D.I. 7; D.I. 12) Defendant has also filed a reply.
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. Under 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
Rule of Civil Procedure 4(c)(1) states that a "summons
must be served with a copy of the complaint. The plaintiff is
responsible for having the summons and complaint served
within the time allowed by Rule 4(m) and must furnish the
necessary copies to the person who makes service." Rule
4(h) permits service of a corporation (1) in the manner
prescribed by Rule 4(e)(1) for serving an individual; or (2)
by delivering a copy of the summons and of the complaint to
an officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of
process and-if the agent is one authorized by statute and the
statute so requires-by also mailing a copy of each to the
defendant. Fed.R.Civ.P. 4(h)(1).
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. If service is not completed within that time, the
action is subject to dismissal without prejudice.
See Fed. R. Civ. P. 4(m); see also MCI
Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086,
1098 (3d Cir. 1995).
courts should grant pro se plaintiffs leniency in
considering their filings, pro se plaintiffs are
nevertheless expected to "follow the rules of procedure
and the substantive law[.]" Thompson v. Target
Stores, 501 F.Supp.2d 601, 603 (D. Del. 2007). However,
courts are generally "reluctant to dismiss an action
where there is a possibility of proper service because
dismissal 'needlessly burdens the parties with additional
expense and delay and postpones the adjudication of the
controversy on its merits.'" Copia Commc'ns,
LLC, v. AM Resorts, LP., 2017 WL 2656184, at *6 (E.D.
Pa. June 20, 2017) (citation omitted).
moves for dismissal on the grounds that: (1) Plaintiffs
service package was served upon Defendant's receptionist,
a person who is not an agent authorized to accept service on
its behalf; (2) the service package contained an unsigned
complaint different from the Complaint that Plaintiff filed
when she commenced this case; (3) Plaintiff never requested a
waiver of service pursuant to Fed.R.Civ.P. 4(d); and (4) the
attempt at service was not made until after expiration of the
90-day time-frame to serve Defendant.
responds that she was out of the country when the first
summons issued in this case and, because she could not return
home prior to the Rule 4(m) deadline, she asked Yasser Daoud
("Daoud"), a non-party individual, to serve
Defendant. (D.I. 12 at 1) Plaintiff explains that Daoud was
accidently emailed the "general complaint" that had
been filled out but was not the actual docketed,
court-stamped "employment Complaint." (Id.
at 2) Daoud presented the "general complaint" to
Rebecca Brasure ("Brasure") who did not advise