Franklin v. Children and Families First

Filing 10

MEMORANDUM OPINION Signed by Judge Leonard P. Stark on 8/19/2015. (aah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

FRAN K. FRANKLIN,
Plaintiff,
v.

Civ. No. 14-8S2-LPS

CHILDREN AND FAMILIES FIRST,
Defendant.

Fran K. Franklin, Berlin, Maryland, Pro Se Plaintiff.
James H. McMackin, III, Esquire, Morris James LLP, Wilmington, Delaware. COllllSel for
Defendant.

MEMORANDUM OPINION

August 19, 2015
Wilmington, Delaware

STARK, U.S. District Judge:
I.

INTRODUCTION
Plaintiff Fran K Franklin ("Plaintiff") filed this employment discrimination action on July 1,

2014. (D.I. 1) Plaintiff proceeds pro se and has paid the filing fee. The Court has jurisdiction
pursuant to 28 U.S.c. § 1331. Presendy before the Court are Defendant Children & Families First's
("Defendant") motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(5) (D.I. 4) and motion to strike
Plaintiff's sur-reply (D.!. 9). For the reasons that follow, the Court will deny the motion to dismiss
and will grant the motion to strike.

II.

BACKGROUND
Plaintiff filed her complaint on July 1, 2014.1 Swnmons was served on Defendant on

October 30, 2014.2 (D.l. 3,5) Defendant moves for dismissal pursuant to Fed. R. Civ. P. 12(b)(5)
on the grounds that it was not timely served.

III.

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 him or her with the swnmons and complaint. See Fed. R. Civ. P.
12(b) (5). A plaintiff "is responsible for having the swnmons and complaint served within the time
allowed by Rule 4(m)." Fed. R. Civ. P. 4(c)(1). Rule 4(m) imposes a 120-day time limit for
perfection of service following the filing of a complaint. Fed. R. Civ. P. 4(m). If service is not
completed within that time, the action is subject to dismissal without prejudice. See id.; see also MCI

Telecomms. Cop. v. Teleconcepts, Inc., 71 F.3d 1086, 1098 (3d Cir. 1995).

1

Contrary to Defendant's assertions, the Complaint filed by Plaintiff is signed. (See D.l. 1 at 7)

2

The swnmons was served on Gwen Lang, Defendant's receptionist.
1

Before a court dismisses a case for insufficient process, it must first determine whether good cause
exists for failure to serve. See Petrucelli v. Bohringer& Ratiinger, 46 F.3d 1298, 1308 (3d Cir. 1995). If
good cause exists, the Court must extend the time for service; even if good cause does not exist, the
Court has discretion either to dismiss the complaint without prejudice or to extend the time for
service. See id.

IV.

DISCUSSION
In reviewing the court docket, it is evident that the complaint was served one day beyond the

120 time-frame for service. See Fed. R. Civ. P. 4(m). 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 obtained." Id.
Plaintiff proceeds pro se and advises the Court she believed that, based upon her calculation, service
was not due until October 30, 2014, the day it was served. The Court takes note of Plaintiffs pro se
status and finds she has provided good cause for the one day delay in service. Finally, in light of the
fact that service was a mere one day late, and given the instruction from the Third Circuit in

Umbenhauer, the Court chooses not to dismiss the complaint pursuant to Rule 12(b)(5).
Accordingly, the Court will deny the motion to dismiss and will extend the time for service
to October 30, 2014.

V.

CONCLUSION
For the above reasons, the Court will: (1) deny Defendant's motion to dismiss (D.I. 4);

2

(2) grant Defendant's motion to strike (D.I. 9) Plaintiffs sur-reply;3 and (3) extend the time for
service to October 30, 2014.

An appropriate Order will be entered.

3 Delaware Local Rule 7.1.2(b) provides that once a reply has been filed, additional papers may not
be filed absent Court approval. See D. Del. LR 7.1.2(b).

2