Fenzel v. Group2 Software, LLC et al

Filing 29

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
:
JERRY FENZEL
:
v.

:

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
George’s

County,

Maryland,

alleging

breach

of

contract

and

related claims against Group2 Software, LLC (“Group2”), and its
sole member, Thomas Bowen.
2013,

and

diversity

removed
of

to

Group2 was served on January 3,

this

citizenship

court

as

the

the

following

day,

jurisdictional

citing

basis.

It

answered the complaint on February 11, 2013, and subsequently
filed a counterclaim.
At

the

court’s

direction,

Plaintiff

filed

an

affidavit

reflecting that service of process was effected upon Mr. Bowen
on

December

20,

2012,

by

personal

delivery

to

John

Stover,

described as Mr. Bowen’s “roommate,” at an address in Annapolis,
Maryland.

(ECF

No.

11).

Mr.

Bowen

moved

to

strike

the

affidavit of service and to quash service of process, arguing
that he did not reside in Annapolis, that he was a resident of

South

Carolina,

and

that

he

did

not

know

Mr.

Stover.

As

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
issue.

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

1

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 ¶
2).
2

C.

Etelson,

Bowen.”
As

Esq.[,]

as

the

confirmed

attorney

for

Defendant

(Id. at 2).
promised,

Plaintiff

service on October 18.

filed

his

(ECF No. 26).

motion

for

alternative

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).
November 18.

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
“Defendant

Bowen

has

not

filed

an

Motion for Alternative Service[.]”

Opposition

to

Plaintiff’s

(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[.]”

Maryland

Rule 2-121(c), in turn, provides that when presented with an
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affidavit reflecting that good faith efforts have been made to
serve the defendant, “the court may order any other means of
service

that

it

deems

appropriate

in

the

circumstances

and

reasonably calculated to give actual notice.”
Plaintiff has attached to his motion the affidavit of a
process
effect

server
service

reflecting

that

of

by

process

seven

attempts

delivery

reflected in Mr. Bowen’s motion to quash.
attached

is

an

email

indicating

that

at

the

were
two

made

to

addresses

(ECF No. 26-1).
Plaintiff’s

Also

counsel

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).

While there

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
by

counsel,

behalf.

who

previously

filed

a

motion

to

quash

on

his

Moreover, Mr. Bowen has not opposed the motion, which

requests authorization to effect service by U.S. mail to Mr.
Bowen’s

counsel

provided.

and

Mr.

Bowen

at

the

address

he

previously

This method would be consistent with due process, as

it is “reasonably calculated, under all the circumstances, to
4

apprise [Mr. Bowen] of the pendency of the action and afford
[him]

an

opportunity

to

present

[his]

objections.”

Elmco

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
United

States

District

Court

for

the

District

of

Maryland,

ORDERED that:
1.

Plaintiff’s motion for alternative service (ECF No.

26) BE, and the same hereby IS, GRANTED;
2.
effect

Plaintiff BE, and the same hereby IS, AUTHORIZED to
service

of

process

upon

Defendant

Thomas

Bowen

by

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.
Bowen’s

counsel

promptly

file

of
an

record.
affidavit

Upon
of

mailing,

service,

Plaintiff
as

required

will
by

Fed.R.Civ.P. 4(l);
3.

The

motion

to

dismiss

filed

by

Defendant/Counter-

Plaintiff Group2 Software, LLC (ECF No. 27), BE, and the same
hereby IS, DENIED; and
4.

The

clerk

is

directed

to

transmit

copies

of

this

Memorandum Opinion and Order to counsel for the parties.
________/s/_________________
DEBORAH K. CHASANOW
United States District Judge
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