JEWELL v. BESTBUS

Filing 16

MEMORANDUM ORDER granting Defendant's 6 Motion to Quash, denying Defendant's 6 Motion to Dismiss, and granting Plaintiff's 11 Motion for Leave to File. Plaintiff shall have 30 days from the date of this Order to amend his complaint and effectuate proper service of process. See attached Memorandum Order for details. Signed by Judge Trevor N. McFadden on 8/3/2018. (lctnm3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

VASILY JEWELL,
Plaintiff,
v.

Case No. 1:18-cv-00359 (TNM)

BESTBUS COMPANY,
Defendant.

MEMORANDUM ORDER
Vasily Jewell seeks to sue DC2NY Incorporated for alleged violations of state and
federal labor laws, civil rights laws, breach of contract, and negligence. DC2NY has moved to
quash service and dismiss the Plaintiff’s complaint under Fed. R. Civ. P. 12(b)(4) and 12(b)(5). I
find that Mr. Jewell failed to serve DC2NY in violation of Fed. R. Civ. P. 4 (“Rule 4”), and that
he failed to use the Defendant’s correct legal name in the complaint caption as required by Fed.
R. Civ. P. 10(a) (“Rule 10”). However, he has shown good cause for the insufficient service of
process, and the allegations in Mr. Jewell’s complaint make clear that DC2NY Incorporated is
the intended defendant. I therefore grant the Defendant’s Motion to Quash Service but deny its
Motion to Dismiss. Mr. Jewell will have 30 days from the date of this Order to amend the
complaint caption and effectuate proper service of process. See Fed. R. Civ. P. 4(m); 15(a)(2).
I.
DC2NY seeks dismissal of the case for insufficient service of process. See Fed. R. Civ.
P. 12(b)(5). It is true that Mr. Jewell’s attempted service was not proper under federal or District
of Columbia law. Rule 4 allows Mr. Jewell to deliver the summons and a copy of the complaint

to the Defendant’s authorized agent, or by following D.C. law for serving a summons. Fed. R.
Civ. P. 4(e). Under the District’s laws, “if an entity’s registered agent in the District cannot with
reasonable diligence be found” the Mayor, through the Superintendent of Corporations, “shall be
an agent of the entity upon whom any process against the entity may be served.” D.C. Code 29104.12(d).
Under Rule 4(m), Mr. Jewell had to serve process on DC2NY and file proof of this
service with the Court by May 16, 2018. Minute Order of April 16, 2018. On May 15, Mr.
Jewell filed a process server’s affidavit stating that “BestBus Company” had been served through
delivery of the summons and complaint to the District’s Superintendent of Corporations. Aff. Of
Summons and Compl. Executed, ECF No. 5. This attempted service did not satisfy local law
requirements, however, as the summons and complaint both incorrectly identified the Defendant
as “BestBus Company.” See Summons, ECF No. 3 and Corrected Complaint, ECF No. 2. No
legal entity named “BestBus Company” is registered in the District of Columbia. See Business
Filings Search, D.C. Dep’t of Consumer Affairs (“Corporations Database”) available at
https://corponline.dcra.dc.gov/Home.aspx/ProcessRequest (last visited August 2, 2018). The
case docket features no other proof of service, and so Mr. Jewell failed to timely serve process
on the Defendant.
But Mr. Jewell has shown good cause for this failure. Good cause arises when “a
plaintiff has acted diligently in trying to effect service or there are understandable mitigating
circumstances.” Raynor v. District of Columbia, 296 F. Supp. 3d 66, 72 (D.D.C. 2017). And
where plaintiff shows such good cause, “the court must extend the time for service for an
appropriate period.” Fed. R. Civ. P. 4(m) (emphasis added).

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Between April 11 and April 25, 2018, Mr. Jewell’s process server made five unsuccessful
attempts to serve the Defendant. Aff. Of Process Server, ECF No. 9-2. As DC2NY correctly
notes, on each occasion, the process server tried to serve “Ferras Ghannam,” an unknown
individual. Def.’s Mem. in Opp. To Proposed Mot. for Order to Amend Compl. (“Def.’s
Consolidated Mem.”) 2, ECF No. 12.
Even so, Mr. Jewell’s process server notes that after “careful inquiry and diligent
attempts, I was unable to serve BestBus Company.” Each of these attempts was made at
DC2NY’s registered business address in the District: 1401 Church St., NW, Suite 516,
Washington, DC 2005. See Aff. Of Process Server; Corporations Database, File No. 280482.
And, as DC2NY concedes, it does business as “Bestbus.” Def.’s Mot. to Quash 1, ECF No. 6.
The use of “BestBus Company” rather than the Defendant’s registered tradename of “Bestbus”
was an understandable error.
The listed business address also appears to be the home of the Defendant’s registered
agent and CEO, Richard B. Green. See Aff. Of Process Server (“[The front desk receptionist]
stated that Richard Green and another person resides [sic] in that unit”); DC2NY Bus Company,
Better Business Bureau, available at https://www.bbb.org/washington-dc-eastern-pa/businessreviews/charter-bus/dc2ny-bus-company-in-washington-dc-162310077 (listing Richard B. Green
as company CEO); Corporations Database (listing Green as the registered agent).
On the process server’s fifth unsuccessful attempt, the building’s receptionist was able to
reach Mr. Green, who “stated not [sic] to be home at the time . . . and that the company BestBus
Company is not known at the address.” Aff. of Process Server. DC2NY does not contest the
accuracy of the process server’s affidavit. See, e.g., Def.’s Consolidated Mem. 2 (using the
process server’s statements to allege insufficient service of process). That Mr. Green, Bestbus’s

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CEO and registered agent, suggested that “BestBus Company is not known at the address” is at
least an understandable mitigating circumstance, if not a deliberate effort at, preventing
effectuation of service. Even though service was thus improper, Mr. Jewell has shown good
cause for his failure and, under Rule 4(m), will be granted 30 days to correctly serve DC2NY.
II.
DC2NY also seeks dismissal of the case for insufficient process under Federal Rule of
Civil Procedure 12(b)(4), arguing that the summons and complaint do not properly identify
DC2NY Incorporated as the Defendant. Def.’s Mot. to Quash 1. Rule 10 requires that “the title
of the complaint must name all the parties.” Fed. R. Civ. P. 10. But Mr. Jewell’s mistake in
using “BestBus Company” rather than the Defendant’s trade name “Bestbus” does not merit
dismissal of the case.
Instead, because the error is harmless and the complaint makes it clear that DC2NY
Incorporated is the intended defendant, Mr. Jewell will be granted leave to amend his complaint
under Fed. R. Civ. P. 15(a)(2) (requiring the court to “freely give leave” to amend a complaint
“when justice so requires.” See Canuto v. Mattis, 273 F. Supp. 3d 127, 133 (D.D.C. 2017)
(concluding that when a plaintiff “brought suit against a suable California corporation—
Woodman-Sylvan Properties, Inc.—but . . . mistakenly named that corporation . . . in her
complaint” the Court had a “duty” to grant leave to amend the complaint sua sponte under Fed.
R. Civ. P. 15(a)(2)). See also Barsten v. Department of Interior, 896 F.2d 422, 423 (9th Cir.
1990) (“[E]ven if an improper defendant is indicated in the caption, we may consider a complaint
to have named the proper defendant if the allegations made in the body of the complaint make it
plain that the party is intended as a defendant.”); Battle v. Anderson, 993 F.2d 1551 (Table) at *2

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(10th Cir. 1993) (“[D]effective caption is merely formal error and should never be viewed as
fatal defect.”).

For these reasons, it is hereby
ORDERED that the Defendant’s Motion to Quash Service of Process is GRANTED and
the Defendant’s Motion to Dismiss is DENIED. The Plaintiff shall have 30 days from the date
of this order to amend his complaint and effectuate proper service of process.
SO ORDERED.

2018.08.03
12:47:34 -04'00'

Dated: August 3, 2018

TREVOR N. MCFADDEN, U.S.D.J.

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