Ngabo v. Le Pain Quotidien, No. 8:2011cv00096 - Document 17 (D. Md. 2011)
Court Description: MEMORANDUM OPINION (c/m to Plaintiff 3/17/11 sat). Signed by Chief Judge Deborah K. Chasanow on 3/17/11. (sat, Chambers)
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Ngabo v. Le Pain Quotidien Doc. 17 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : AMANI NGABO : v. : Civil Action No. DKC 11-0096 : LE PAIN QUOTIDIEN : MEMORANDUM OPINION Presently pending and ready for resolution in this employment discrimination action is a motion to dismiss or to quash service filed by Defendant Le Pain Quotidien. 9).1 (ECF No. The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Defendant s motion will be granted. I. Background On October 4, 2010, pro se Plaintiff Amani Ngabo commenced this action against Defendant Le Pain Quotidien in the Circuit Court for Montgomery County, Maryland, by filing a complaint alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. owns and operates restaurants (ECF No. 2). worldwide. Since Defendant April 2008, 1 Defendant actually asks to the court to dismiss and quash service. Because the court will quash service without dismissing, it construes these as alternative requests. Dockets.Justia.com Plaintiff has worked at Maryland, as a dishwasher. On December 27, Defendant s restaurant in Bethesda, (ECF No. 2, ¶ 1). 2010, Plaintiff filed an affidavit of service stating that he mailed the summons and complaint to Defendant s Bethesda restaurant. (ECF No. 9, Attach. 4, at 1).2 Attached to the affidavit was a copy of a United States Postal Service documents tracking by report certified indicating mail, delivery or a return receipt. but that did not (Id. at 2). Plaintiff request sent the restricted Defendant maintains, and Plaintiff does not deny, that Plaintiff did not file an original return receipt. On January 12, 2011, Defendant timely removed the case to this court on the basis of federal question jurisdiction. No. 1). (ECF On January 19, Defendant filed the instant motion to dismiss or to quash service. (ECF No. 9). 2 Defendant has attached the affidavit of service to its motion, but this document has not yet been docketed in this court. Pursuant to Local Rule 103.5(a), the party effecting removal is required to file, along with its notice of removal, true and legible copies of all process, pleadings, documents and orders which have been served upon that party, and within thirty days thereafter, all other documents then on file in the state court, together with a certification from counsel that all filings in the state court action have been filed in the United States District Court. Defendant removed this case on January 12, 2011, attaching the complaint, scheduling order, an order for mandatory settlement conference, and a notice of filing its notice of removal. (ECF Nos. 2-5). To date, it has not filed any other state court documents, nor has defense counsel filed the required certification. 2 II. Standard of Review Defendant has moved to dismiss for insufficient service of process under Rule 12(b)(5). The plaintiff bears the burden of establishing that service of process was valid. Waters, 464 F.Supp.2d 474, 476 (D.Md. 2006). See O'Meara v. Generally, when service of process gives the defendant actual notice of the pending action, the courts may construe Rule 4 liberally. Id. The plain requirements for the means of effecting service of process, however, may not be ignored. Id. III. Analysis Defendant contends that service of process is insufficient because Plaintiff (1) did not request restricted delivery, (2) mailed the summons and complaint to Defendant s Bethesda restaurant, rather than to its resident agent, and (3) filed a defective affidavit of service. Plaintiff responded by sending a did letter to the court that challenges to service of process. not address Defendants (ECF No. 15). In cases removed to federal court, state law determines whether removal. (D.W.Va. service process was properly effected prior to See, e.g., Wolfe v. Green, 660 F.Supp.2d 738, 745 2009). corporations through of in The person, substituted Maryland by service mail, upon Assessments and Taxation ( SDAT ). 3 Rules or, the permit in some State service on circumstances, Department of See Md. Rule 2-121(a), 2- 124(d), 2-124(o). president, service. Generally, a corporation s resident agent, secretary, or treasurer Md. Rule 2-124(d). is authorized to accept If a corporate defendant has no resident agent, or if a good faith attempt to serve the resident agent, president, secretary, or treasurer has failed, service may be made by serving the manager, any director, vice president, assistant secretary, assistant treasurer, or other person expressly or impliedly authorized to receive service of process. Id. Service by mail is effectuated by mailing to the person to be served a copy of the summons, complaint, and all other papers filed with it by certified mail requesting Restricted Delivery, address of delivery. plaintiff may serve i.e., show[ing] to Md. Rule 2-121(a)(3). a corporation by whom, date, [and] Alternatively, a leaving copies of the summons and complaint with the SDAT if (i) the corporation has no resident agent; (ii) the resident agent is dead or no longer at the address for service of process maintained with the [SDAT]; or (iii) two good faith attempts on separate days to serve the resident agent have failed. Md. Rule 2-124(o). In addition, after service of process has been effected, the plaintiff must file proof of the service with the court promptly. Md. Rule 2-126(a). Filing a proper proof of service is prima facie evidence of valid service of process. Highway Admin. v. Kee, 309 Md. 523, 532 (1987). 4 State Where service is made by certified mail, the proof shall include the original return receipt. Plaintiff summons and Md. Rule 2-126(a)(3). purported complaint to to serve Defendant Defendant s by Bethesda sending the restaurant by certified mail, but he did not request restricted delivery as required by Md. Rule 2-121(a). Plaintiff additionally mailed the summons and complaint to Defendant s Bethesda restaurant, rather than to a person authorized to receive service, such as Defendant s resident agent, president, secretary, or treasurer. See Md. Rule 2-124(o). Furthermore, Plaintiff s affidavit of service was deficient because he did not include the original return receipt. See Md. Rule 2-126(a). Accordingly, Plaintiff has not properly effected service of process. Insufficient service necessitate dismissal. of process, however, does not Where the first service of process is ineffective, a motion to dismiss should not be granted, but rather the Court should treat the motion in the alternative, as one to quash the service of process and the case should be retained on the docket pending effective service. Vorhees v. Fischer & Krecke, 697 F.2d 574, 576 (4th Cir. 1983) (quoting Bailey v. Boilermakers Local 667 of Int l Bhd. of Boilermakers, 480 F.Supp. 274, prejudice to prospect that the 278 (N.D.W.Va. defendant service may 1979)). and there yet be 5 Where exists obtained, there a is no reasonable dismissal is inappropriate and courts have generally allowed the plaintiff another opportunity to effect service. Umbenhauer v. Woog, 969 F.2d 25, 30 (3rd Cir. 1992). In the interest of justice and recognizing Plaintiff s pro se status, the court will provide another opportunity Plaintiff to effect service of process on Defendant. v. Kerner, 404 U.S. 519, 520 (1972). for See Haines Where service in state court is found to be defective, a plaintiff may obtain a summons in federal court and serve it in accordance with Rule 4 of the Federal Rules of Civil Procedure. See 28 U.S.C. § 1448; see also Carden v. Wal-Mart Stores, Inc., 574 F.Supp.2d 582, 587-88 (S.D.W.Va. 2008). Federal Rule of Civil Procedure 4(l) instructs that the person effecting service notify the court, served the defendant. of through an If the summons affidavit, Plaintiff and that does not complaint he or use a she must has private process server, and instead uses registered or certified mail to make service, he must file with the court the United States Post Office acknowledgement (green card) as proof of service. Plaintiff must also demonstrate that service was made upon an appropriate person at an appropriate address. 2-124(d)-(i) service upon specifically a sets corporation or forth other the Maryland Rule requirements business for association. Federal Rule of Civil Procedure 4 does not directly provide for 6 service by mail, but it does authorize, in subsections (e) and (h), service upon a corporation by any means allowed by the state where the district court is located or the state where service is to be effected. As noted, Maryland law provides for service by certified, restricted delivery mail. 123. Under Maryland law, service is See Md. Rule 2- properly made upon a designated resident agent, or upon certain corporate officers or general partners. Id.3 Plaintiff must show the address at which Defendant was served, why he believes the address was a proper location to serve, and any basis for believing that the person who signed for delivery was an appropriate individual to accept service under Rule 2-124. process was served as Plaintiff must also indicate whether required by Federal Rule of Civil Procedure 4(c), that is, whether the summons and the complaint were served in the package referenced. Plaintiff shall prepare and return a summons to the Clerk of Court for issuance. Once the clerk issues the summons, he shall be permitted sixty days to properly effect service and file a return of service with the Court to show that service was effected. 3 Defendant asserts in its motion that its proper name is PQ Bethesda, Inc. According to the Maryland Department of Assessments and Taxation, the current resident agent for this entity is CSC-Lawyers Incorporating Service Co., which is located at 7 St. Paul Street, Suite 1660, Baltimore, Maryland 21202. 7 IV. Conclusion For granted. the foregoing reasons, Defendant s motion will A separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 8 be
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