Marshall v. Marshall's TJX Companies, Inc.

Filing 11

MEMORANDUM AND ORDER GRANTING 7 Motion to Dismiss, treated as a Motion to Quash Service of Process. QUASHING service upon Defendant and GRANTING Plaintiff an additional 30 days to effect proper service. Signed by Judge William M Nickerson on 8/11/2015. (c/m)(hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

MICHAEL L. MARSHALL

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v.
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MARSHALL’S TJX COMPANIES, INC.*
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Civil Action No. WMN-15-555

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MEMORANDUM AND ORDER
After receiving a right to sue letter from the Equal
Employment Opportunity Commission dated December 1, 2014,
Plaintiff, proceeding pro se, filed this action in this Court on
February 26, 2015, under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq.

A summons was issued for

Defendant Marshall’s TJX Companies, Inc.1 on March 31, 2015.

On

May 29, 2015, Plaintiff filed a “Proof of Service” that
indicated that he had mailed the summons by certified mail,
restricted delivery, to “Marshall’s TJX Companies, 12 Mountain
Rd., Glenn Burnie, MD, 21061.”

ECF No. 6.

This certified mail

was signed for by Alician Bunch at that address on May 25, 2015.
Ms. Bunch, however, has submitted an affidavit stating that: she
is a Merchandise Coordinator at the store to which the summons
was sent; she was not aware that the envelope contained a
summons when she signed for it; she is not, nor has she ever

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Defendant has noted that its correct name is TJX Companies,
Inc.

been, authorized to accept service of process for Defendant; and
the envelope did not contain a copy of the Complaint, but simply
contained the summons.

ECF No. 7-3 ¶¶ 1-5.

Defendant filed a motion on June 15, 2015, ECF No. 7,
arguing that the Complaint should be dismissed under Rule
12(b)(4) and 12(b)(5) of the Federal Rules of Civil Procedure on
the ground that service was insufficient for the following
reasons.

First, Plaintiff mailed the summons himself, which

violates the rule requiring service to be made by a non-party.
See Rule 4(c)(2) (providing that service can be made by a person
who is at least 18 years of age and not a party to the suit);
Constien v. United States, 628 F.3d 1207, 1213-14 (10th Cir.
2010) (while questioning the wisdom of applying this requirement
in this context, noting that the rule contains no exception to
the nonparty requirement for service by mail).2

Second,

Plaintiff mailed the summons to one of Defendant’s stores,
rather than to Defendant’s resident agent or other individual
authorized to accept service. See Md. Rules 2-121(a)(3) and 2124(d) (providing that process must be mailed “to the person to
be served” which, for corporations, is the corporation’s
“resident agent, president, secretary, or treasurer”).

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Third,

The Federal Rules do not provide for service by mail but permit
service in accordance with state law. Fed. R. Civ. P. 4(e)(1).
The Maryland Rules provide for service by certified mail. Md.
Rule 2-121(a)(3).
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Plaintiff failed to send a copy of the Complaint along with the
Summons, in violation of Rule 4(c)(1) of the Federal Rules of
Civil Procedure and Rule 2-121(a) of the Maryland Rules.
Finally, Plaintiff’s proof of service filing failed to comply
with the Maryland Rules which require the filing of an affidavit
stating that the individual effecting service is over 18 years
of age along with the original return receipt.

Md. Rule 2-

126(a)(2) & (3).
There is no question that service was insufficient for each
and all of these reasons.

Plaintiff, in opposing Defendant’s

motion, acknowledges as much and apologizes for his failure to
properly effect service.

Plaintiff asks the Court’s indulgence

for that failure, however, noting his pro se status, his
“ignorance of the details of the law,” and the fact that
Defendant had actual notice of this action.

ECF No. 9.

Once a defendant challenges service of process, the
plaintiff bears the burden of establishing that the service of
process has been performed in accordance with the requirements
of the applicable rules.

Miller v. Baltimore City Bd. of Sch.

Comm’rs, 833 F. Supp. 2d 513, 516 (D. Md. 2011).

In determining

whether the plaintiff has satisfied his burden, the Fourth
Circuit has instructed that the technical requirements of
service should be construed liberally as long as the defendant
had actual notice of the pending suit.
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Karlsson v. Rabinowitz,

318 F.2d 666, 668–69 (4th Cir. 1963).

“When there is actual

notice, every technical violation of the rule or failure of
strict compliance may not invalidate the service of process.
Armco, Inc. v. Penrod–Stauffer Bldg. Sys., Inc., 733 F.2d 1087,
1089 (4th Cir. 1984).

The Fourth Circuit has also cautioned,

however, that “the rules are there to be followed, and plain
requirements for the means of effecting service of process may
not be ignored.”

Id.; see also Tart v. Hudgins, 58 F.R.D. 116,

117 (M.D.N.C. 1972) (observing that a liberal interpretation of
process requirements “does not mean . . . that the provisions of
the Rule may be ignored if the defendant receives actual
notice”).

Here, Plaintiff’s attempt at service is so deficient

that to validate it would completely ignore the rules for
service of process.

The most significant deficiency would be

Plaintiff’s failure to direct service to the proper individual.
The Court need not, however, dismiss the Complaint.

Where,

as here, “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) (internal quotation omitted).

If there is

no prejudice to the defendant and there exists a reasonable
prospect that service may yet be obtained, dismissal is
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inappropriate and Plaintiff should be allowed another
opportunity to effect service.

Umbenhauer v. Woog, 969 F.2d 25,

30 (3rd Cir. 1992).
Accordingly, it is this 11th day of August, 2015, by the
United States District Court for the District of Maryland,
ORDERED:
(1) That the Court will treat Defendant’s Motion to
Dismiss, ECF No. 7, as a motion to quash service of process and
will grant it as such;
(2) That the service or process purportedly effected by
Plaintiff upon Defendant is hereby quashed;
(3) That Plaintiff shall be granted an additional 30 days
in which to effect proper service; and
(4) That the Clerk of the Court shall mail or transmit this
Memorandum and Order to Plaintiff and all counsel of record.

_______________/s/________________
William M. Nickerson
Senior United States District Judge

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