VINCENT v. BURTON et al
Filing
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ORDER granting 20 Motion to Dismiss, dismissing Plaintiff's Complaint without prejudice. By JUDGE JOHN A. WOODCOCK, JR. (MFS)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
PIERRE A. VINCENT,
Plaintiff,
v.
BOB BURTON, et al.,
Defendants.
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2:14-cv-00095-JAW
ORDER DISMISSING COMPLAINT
The Court dismisses the Plaintiff’s pro se Complaint without prejudice because
he has failed despite warnings from the Court over the fifteen months following the
filing of his Complaint to effect service of process upon the Defendants.
I.
STATEMENT OF FACTS
On March 17, 2014, Pierre A. Vincent filed a complaint in this Court against
Bob Burton and Colleen Cothran, with whom Mr. Vincent was employed at the
United States Postal Service. Compl. (ECF No. 1). On July 21, 2014, the Defendants
moved to dismiss the Complaint because Mr. Vincent had not yet served them with
the Complaint. Defs.’ Mot. to Dismiss or, in the Alternative, to Quash Serv. (ECF No.
11). On September 10, 2014, the Magistrate Judge recommended that the Court deny
the motion to dismiss and enter an order extending the time to make proper service
on the Defendants. Recommended Decision (ECF No. 13). On November 3, 2014, this
Court affirmed in part and modified in part the Magistrate Judge’s recommended
decision, setting January 5, 2015 as the deadline for Mr. Vincent to file proof of service
of process on the Defendants under Federal Rule of Civil Procedure 4.
Order
Affirming in Part and Modifying in Part the Recommended Decision of the Magistrate
Judge (ECF No. 17).
On November 25, 2014, Mr. Vincent filed a letter dated July 1, 2013 from the
United States Postal Service, which Mr. Vincent marked as “New Evidence” together
with five attachments: (1) a July 10, 2013 letter from the United States Postal
Service, (2) an Opinion from an Expedited Arbitration Panel dated June 13, 2014, (3)
a handwritten statement signed by Ronald P. Sellner dated April 25, 2014; and (4) a
faxed document from Mr. Vincent dated November 21, 2014. New Evidence Attachs.
1-4 (ECF No. 18).
Mr. Vincent has not, however, complied with the Court Order dated November
10, 2014 requiring him to file evidence of proper service of process by January 5, 2015.
On January 29, 2015, the Defendants moved the Court to dismiss the Vincent
Complaint based on insufficient process.
Defs.’ Mot. to Dismiss for Insufficient
Process (ECF No. 20). Mr. Vincent has not responded to the Defendants’ motion to
dismiss.
II.
DISCUSSION
Under Federal Rule of Civil Procedure 4(i)(3), to serve an employee of the
United States, a party “must . . . serve the . . . employee under Rule 4(e) . . . .”1 FED.
R. CIV. P. 4(i)(3). Rule 4(e) provides that a person may effect service on an individual
Rule 4(i)(3) also refers to service under Rule 4(f) and (g). FED. R. CIV. P. 4(i)(3). However,
neither subpart is applicable here. Rule 4(f) addresses serving an individual in a foreign country and
Rule 4(g) deals with serving a minor or incompetent person. FED. R. CIV. P. 4(f)-(g).
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by doing any of the following: (1) “delivering a copy of the summons and of the
complaint to the individual personally; (2) leaving a copy of each at the individual’s
dwelling or usual place of abode with someone of suitable age and discretion who
resides there; or (3) delivering a copy of each to an agent authorized by appointment
or by law to receive service of process.” FED. R. CIV. P. 4(e)(2)(A)-(C). In addition,
because Mr. Vincent initially filed suit in a state of Maine court, he could have
effected service pursuant to the Maine Rules of Civil Procedure. See Fed. R. Civ. P.
4(e)(1) (“[A]n individual . . . may be served in a judicial district of the United States
by (1) following state law for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is located or where service is
made”). Although the language of Maine Rule of Civil Procedure 4(d)(1) differs
slightly from its federal counterpart, the service requirements are generally the same.
See ME. R. CIV. P. 4(d)(1).
In addition, the party must also serve the United States. FED. R. CIV. P. 4(i)(3)
(“To serve a United States . . . employee sued in an individual capacity for an act or
omission occurring in connection with duties performed on the United States’ behalf
. . ., a party must serve the United States . . . .”). To serve the United States, a party
must: (1) “deliver a copy of the summons and of the complaint to the United States
attorney for the district where the action is brought—or to an assistant United States
attorney or clerical employee whom the United States attorney designates in a
writing filed with the court clerk”; or (2) “send a copy of each by registered or certified
mail to the civil-process clerk at the United States attorney’s office.” FED. R. CIV. P.
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4(i)(1)(A)(i)-(ii). In addition, the party must: (1) “send a copy of each by registered or
certified mail to the Attorney General of the United States in Washington, D.C.” and
(2) if the action challenges an order of a non-party agency or officer of the United
States, send a copy of each by registered or certified mail to the agency or officer.”
FED. R. CIV. P. 4(i)(1)(B)-(C).
The Court tugged on this case in an effort to make certain that Mr. Vincent
had sufficient time to effect service of process in a manner consistent with the Rules
of Civil Procedure. However, despite the passage of over six months from the date
such proof was due and over fifteen months from the date he filed the Complaint, Mr.
Vincent has failed to provide the Court with any evidence that he has complied with
the Court Order dated November 3, 2014 and properly effected service of process.
In the event a defendant does not waive service of process, Rule 4(e) provides
the means for a plaintiff to effect service. FED. R. CIV. P. 4(e). Rule 4(m) establishes
the time limit for service either by waiver or under Rule 4(e) and also sets forth the
penalties for failure to do so:
If a defendant is not served within 120 days after the complaint is filed,
the court—on motion or on its own after notice to the plaintiff—must
dismiss the action without prejudice against that defendant or order
that service be made within a specified time. But if the plaintiff shows
good cause for the failure, the court must extend the time for service for
an appropriate period.
FED. R. CIV. P. 4(m). “Generally, courts are lenient with pro se litigants, especially in
their efforts to comply with more technical rules. However, the mere fact that a party
is pro se ‘is not automatically enough to constitute good cause for purposes of Rule
4(m).’” Ryan v. Krause, No. 1:11-cv-00037-JAW, 2012 U.S. Dist. LEXIS 99751 (D.R.I.
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Jul. 17, 2012) (quoting Pizzaro v. Wall, No. 03-426S, 2004 U.S. Dist. LEXIS 8514, at
*3 (D.R.I. Apr. 4, 2004)).
Furthermore, “[i]t is well known that the Court cannot sit idly waiting for
plaintiff to litigate its case at its pleasure.” Robledo-Rivera v. Cartagena, 233 F.R.D.
236, 237 (D.P.R. 2005). When a plaintiff does not correctly initiate a complaint by
properly effecting service of process, the court where the complaint was filed is
without personal jurisdiction over the defendants. Farm Credit Bank v. FerreraGoitia, 316 F.3d 62, 68 (1st Cir. 2003) (“Personal jurisdiction usually is obtained over
a defendant by service of process”); Robinson v. Hogansville Police Dep’t, 159 Fed.
Appx. 137, 138 (11th Cir. 2005). As the First Circuit has noted, “the evident purpose
of Rule 4(j)2 was to compel parties and their counsel to be diligent in prosecuting
causes of action.” United States v. Ayer, 857 F.2d 881, 884 (1st Cir. 1988). Here,
fifteen months after Mr. Vincent filed suit in this Court, he has still not effected
service of process on the Defendants, even after warnings from this Court that he
must do so. Nor has he offered good cause for his failure that would otherwise justify
an extension of time.
In such a circumstance, a court does not err in dismissing the complaint.
Rather than dismiss Mr. Vincent’s Complaint with prejudice, however, the Court will
dismiss his Complaint without prejudice. See Roblero-Rivera, 233 F.R.D. at 237
(“[T]he Court is fully aware that dismissal with prejudice is the death knell of the
lawsuit”).
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Rule 4(j) has since been replaced by Rule 4(m).
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III.
CONCLUSION
The Court GRANTS Defendants’ Motion to Dismiss for Insufficient Process
(ECF No. 20) and DISMISSES Plaintiff Pierre A. Vincent’s Complaint without
prejudice.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 23rd day of June, 2015
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