Fenzel v. Group2 Software, LLC et al
MEMORANDUM AND ORDER GRANTING 26 Plaintiff's Motion for Alternative Service, AUTHORIZING Plaintiff to effect service of process upon Defendant Thomas Bowen by mailing, within fourteen (14) days, a copy of the summons and complaint via first class mail and DENYING 27 motion to dismiss filed by Defendant/Counter-Plaintiff Group2 Software, LLC. Signed by Chief Judge Deborah K. Chasanow on 11/26/13. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. DKC 13-0379
GROUP2 SOFTWARE, LLC, et al.
MEMORANDUM OPINION AND ORDER
Plaintiff Jerry Fenzel commenced this action on December
10, 2012, by filing a complaint in the Circuit Court for Prince
related claims against Group2 Software, LLC (“Group2”), and its
sole member, Thomas Bowen.
Group2 was served on January 3,
answered the complaint on February 11, 2013, and subsequently
filed a counterclaim.
reflecting that service of process was effected upon Mr. Bowen
described as Mr. Bowen’s “roommate,” at an address in Annapolis,
affidavit of service and to quash service of process, arguing
that he did not reside in Annapolis, that he was a resident of
support, Mr. Bowen provided a declaration indicating that he
resided at “11 Radcliffe Place, Charleston, South Carolina,” as
well as a copy of his South Carolina driver’s license reflecting
an address of “15 Radcliffe Place” in Charleston.
Ex. 1 ¶ 2, Ex. 1A).1
(ECF No. 13,
Plaintiff did not oppose the motion, which
was granted on May 31, 2013.
The clerk reissued a summons for
Mr. Bowen on July 2.
When Plaintiff did not file proof of service as to Mr.
Bowen during the ensuing three months, the court, on October 1,
directed his counsel to file a status report addressing the
Plaintiff’s counsel responded on October 15, indicating
that “numerous attempts” to serve Mr. Bowen at both 11 Radcliffe
Place and 15 Radcliffe Place had been unsuccessful and that
counsel for Mr. Bowen had advised that he was not authorized to
accept service of behalf of his client.
(ECF No. 25, at 1).
Counsel further asserted, “it appears that Defendant Bowen is
evading service,” and advised that “Plaintiff intends to file a
Motion for Alternative Service in this Court [by] no later than
October 18, 2013[,] requesting service via regular mail on Glenn
Mr. Bowen asserted in his declaration that he has lived at
11 Radcliffe Place “for the past six years,” but that he
previously resided at 15 Radcliffe Place. (ECF No. 13, Ex. 1 ¶
(Id. at 2).
service on October 18.
(ECF No. 26).
On November 1, Group2
filed papers opposing Plaintiff’s motion and seeking dismissal
of the complaint for failure to effect service of process upon
Mr. Bowen within 120 days, as required by Fed.R.Civ.P. 4(m).
(ECF No. 27).
Plaintiff filed reply and opposition papers on
(ECF No. 28).
As Plaintiff observes, Group2 “lacks standing to file a
Motion to Dismiss a complaint against a separate party” and
Motion for Alternative Service[.]”
(ECF No. 28 ¶¶ 11, 12).
Thus, Group2’s motion to dismiss must be denied and Plaintiff’s
motion is unopposed.
In his initial papers, Plaintiff does not cite the legal
basis of his motion, but his reply papers clarify that he seeks
relief pursuant to Fed.R.Civ.P. 4(e)(1) and Md. Rule 2-121(c).
Rule 4(e)(1) provides, in pertinent part, that “an individual .
. . may be served in a judicial district of the United States by
. . . 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[.]”
Rule 2-121(c), in turn, provides that when presented with an
affidavit reflecting that good faith efforts have been made to
serve the defendant, “the court may order any other means of
reasonably calculated to give actual notice.”
Plaintiff has attached to his motion the affidavit of a
reflected in Mr. Bowen’s motion to quash.
(ECF No. 26-1).
requested that Mr. Bowen’s counsel accept service on behalf of
his client, but that Mr. Bowen’s counsel indicated that Mr.
Bowen had not authorized to do so.
(ECF No. 26-2).
are questions as to whether Plaintiff’s counsel has remained
diligent in his efforts to effect service of process throughout
the pendency of the case, the record clearly reflects that good
faith attempts were made.
The record further reflects that Mr.
Bowen is aware of the suit – indeed, he is the sole member of
Defendant/Counter-Plaintiff Group2 – and that he is represented
Moreover, Mr. Bowen has not opposed the motion, which
requests authorization to effect service by U.S. mail to Mr.
This method would be consistent with due process, as
it is “reasonably calculated, under all the circumstances, to
apprise [Mr. Bowen] of the pendency of the action and afford
Props., Inc. v. Second Nat’l Fed. Sav. Ass’n, 94 F.3d 914, 92021 (4th Cir. 1996) (internal marks and citations omitted).
Accordingly, it is this 26th day of November, 2013, by the
Plaintiff’s motion for alternative service (ECF No.
26) BE, and the same hereby IS, GRANTED;
Plaintiff BE, and the same hereby IS, AUTHORIZED to
mailing, within fourteen (14) days, a copy of the summons and
complaint via first class mail to Defendant Thomas Bowen at 11
Radcliffe Place, Charleston, South Carolina 29403, and to Mr.
Plaintiff Group2 Software, LLC (ECF No. 27), BE, and the same
hereby IS, DENIED; and
Memorandum Opinion and Order to counsel for the parties.
DEBORAH K. CHASANOW
United States District Judge
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