OBriant v. Nestle Dryers Ice Cream et al

Filing 19

MEMORANDUM. Signed by Judge Ellen L. Hollander on 12/4/18. (c/m 12/4/18)(krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
PHILIP O’BRIANT,

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Plaintiff

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v

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NESTLE DRYERS ICE CREAM,
KELLI QUINN, Supervisor,
CAITLIN BERMAN, HR Generalist,
LANIK McINTYRE, Human Resources
Manager,
BILL WOODS, Plant Manager,
TERRENCE MURRAY,
LISA NEASOM,
LINDA HASTIE,
DAVE BARBOUR,

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Civil Action No. ELH-18-1048

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Defendants
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MEMORANDUM
Plaintiff Philip O’Briant, a frequent litigator in this Court, filed a complaint for
employment discrimination. ECF 1. I initially dismissed the claim, for the reasons stated in ECF
3.

In response to Plaintiff O’Briant’s Motion for Reconsideration (ECF 5), this Court

acknowledged that O’Briant’s Complaint sought damages based on racial discrimination and
retaliation under 42 U.S.C. § 1981. ECF 6 at 1. Accordingly, the case was reopened and O’Briant
was granted an opportunity to provide summons and various forms needed to obtain service of
process on Defendant Nestle Dryers Ice Cream (“NDIC”) and individual defendants Berman,
McIntyre, Quinn, Woods, Murray, Neasom, Hastie and Barbour. ECF 6 at 2-3. O’Briant filed an
Amended Complaint (ECF 8), and summons issued. ECF 9; ECF 10.
Plaintiff then moved for summary judgment. ECF 12. On the same date, July 3, 2018,
counsel for NDIC wrote to address deficiencies in O’Briant’s purported service of the summons

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and Complaint on the defendants. Counsel identified the proper resident agent authorized to accept
service of process on NDIC (ECF 13 at 1-2 and n.1), noted that none of the individual defendants
resides at the NDIC address, and stated that some individuals no longer were employed by NDIC.
ECF 13 at 2. Counsel graciously – and correctly – identified how Nestle and the individual
defendants might be served. Despite these deficiencies, counsel indicated that NDIC was willing
to deem the Summons and Complaint as served on it as of the date of the letter and thus answer or
otherwise respond to the Complaint on behalf of the corporate defendant. Id.
Unfortunately, defense counsel did not formally appear.

And, through the Court’s

inadvertence, the letter from counsel was overlooked when the Court dismissed the Amended
Complaint and closed this case, without addressing the § 1981 claim. ECF 14.
O’Briant subsequently noted an appeal. On November 30, 2018, the Fourth Circuit
dismissed the appeal as premature and remanded this case for further proceedings as to the § 1981
claim. ECF 18.
Accordingly, the Court now asks counsel to advise whether counsel remains receptive to
responding to the Complaint on behalf of NDIC (and perhaps individual employee defendants, as
well). Thereafter, the Court shall address whether service of process on the individual defendants
is needed and, if so, what steps must be taken by O’Briant, the Clerk and the United States Marshal
to achieve same.
An Order follows.
Date: December 4, 2018

/s/
Ellen L. Hollander
United States District Judge

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