Abdelfattahfathy v. St. Michael's School & Nursery, Inc.
MEMORANDUM OPINION Signed by Judge Colm F. Connolly on 10/7/2019. (nmf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civil Action No. 18-1955-CFC
ST. MICHAEL'S SCHOOL &
Sherine Abdelfattahfathy, Wilmington, Delaware, Pro se Plaintiff.
Lindsay Neinast, Esquire, Littler Mendelson, PC, Washington, DC.
October 7, 2019
Plaintiff Sherine Abdelfattahfathy (''Plaintiff") who appears pro se and has paid
the filing fee, filed this employment discrimination action on December 11, 2018.
Defendant St. Michael's School & Nursery, Inc. ("Defendant") moves to dismiss for
Plaintiff commenced this action on December 11, 2018.
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).
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.
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 summons and complaint.
Under Rule 12(b)(5), the Court has "broad discretionn 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.
Federal 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).
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).
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).
While 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
Thompson v. Target Stores, 501 F. Supp. 2d 601, 603 (D. Del.
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
Copia Commc'ns, LLC, v. AM Resorts, L.P., 2017 WL 2656184, at *6 (E.D.
Pa. June 20, 2017) (citation omitted).
Defendant 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.
Plaintiff 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 Vasser Daoud ("Daoud"), a non-party individual, to serve Defendant.
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
(Id. at 2) Daoud presented the "general complaint" to Rebecca Brasure
("Brasure") who did not advise Daoud that she could not accept the documents he
served. (D.I. 12 at 2; D.I. 12-1 at ,r,r 7-9)
On March 14, 2019, Daoud went to this Court's Clerk's Office with a copy of the
summons and a signed and dated proof of service.
(D.I. 12-1 at ffll 10-11)
office personnel asked Daoud one or two questions and returned the papers to him.
(Id. at ,r 12) The Court docket reflects that the Clerk's Office reissued the summons
the same day.
Plaintiff states that "seemingly, the person who attended to [Daoud] at
the Clerk's Office misunderstood Daoud's purpose for being there."
(D.I. 12 at 2)
Daoud telephoned Plaintiff who was in Egypt and told her that the Complaint had been
(Id. at 4ff 15)
After the motion to dismiss was filed and Plaintiff learned that service had
seemingly been made upon an unauthorized individual, Plaintiff used a process server
and had the "employment Complaint" mailed directly to the registered agent's listed
address as well as to Defendant's executive director in an attempt to remedy an
inadvertent procedural misstep.
(D.I. 12 at 2-3)
The proof of service indicates that
there was personal service on Defendant's agent on April 17, 2019 at 11 :10 a.m.
12-1 at 9)
The Court finds that Plaintiff has proffered good cause for the failure to properly
and timely serve Defendant. As a pro se litigant, there could be confusion over the
filed date of December 11, 2018 versus the entered date of December 12, 2018,
resulting in the one-day untimely attempt at service.
Plaintiff also provides a valid
explanation why the wrong complaint was initially served.
In addition, while it is
Plaintiff's burden to show proper service, Defendant does not explain why Brasure
accepted the service packet when she was not authorized to do so.
Plaintiff realized that service was not proper, she attempted to remedy the error with
service of Defendant by a professional process server.
Therefore, the Court will deny without prejudice Defendant's motion to dismiss for
To the extent that Plaintiff has not already properly served
Defendant, she will be given an extension of time to properly effectuate service.
For the reasons discussed above, the Court will deny Defendant's motion to
dismiss (D.I. 7) without prejudice to renew in the event the April 17, 2019 service of
Defendant is defective or service is not properly made within the time allowed by the
An appropriate order will be entered.
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