Craig v. Melwood Horticultural Center

Filing 17

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 7/16/2014. (rss, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division

RODERICK CORTEZA CRAIG,
Plaintiff,

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v.

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MELWOOD HORTICULTURAL
TRAINING CENTER, INC.,

Case No.: PWG-13-2742

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Defendant.
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MEMORANDUM OPINION1

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Plaintiff has brought this discrimination and retaliation case against his former employer
under federal and Maryland law. Defendant has moved to dismiss the complaint on the grounds
that Plaintiff did not serve it within the time required by Fed. R. Civ. P. 4(m) and, in any event,
that Defendant was served with an improper version of the complaint as a result of Plaintiff’s
improper attempt to amend it. Plaintiff responds, arguing that service was timely because the
time to serve had been tolled while the Court considered Plaintiff’s motion to proceed in forma
pauperis and asserting that Defendant was served with a properly amended complaint. I agree
with Plaintiff that service was timely, but rule that Fed. R. Civ. P. 15(a) did not permit Plaintiff
to make more than a single amendment as a matter of course and therefore leave of the Court
was required before Plaintiff could serve its second amended complaint. However, because

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This Memorandum Opinion disposes of Defendant Melwood Horticultural Training Center,
Inc.’s Motion to Dismiss Plaintiff’s Second Amended Civil Complaint, ECF No. 13, and
supporting Memorandum, ECF No. 13-1, as well as Plaintiff Roderick Corteza Craig’s
memorandum in opposition, ECF No. 16.

justice so requires, I grant Plaintiff leave to amend nunc pro tunc, so that service on Defendant
was valid and Plaintiff may proceed on his claims.
I.

BACKGROUND
This dispute arises out of Plaintiff Roderick Corteza Craig’s former employment with

Defendant Melwood Horticultural Training Center, Inc. (“Melwood”).

Second Am. Civil

Compl. (“Second Am. Compl.”) ¶ 15, ECF No. 7. The crux of Craig’s claim is that, during his
tenure with Melwood, he suffered racial discrimination and retaliation that adversely affected his
advancement and compensation. Id. ¶¶ 18–19, 27–30. Craig filed a five-count complaint against
Melwood alleging (I) racial discrimination under Title VII; (II) retaliation under Title VII; (III)
racial discrimination under the Maryland Human Relations Act, Md. Code Ann., State Gov’t tit.
20; (IV) hostile and abusive work environment under the Maryland Human Relations Act; and
(V) racial discrimination and retaliation in violation of 42 U.S.C. § 1981. Id. ¶¶ 62–99.
Craig filed his complaint with the Clerk of this Court on September 17, 2013 along with a
motion to proceed in forma pauperis (“the IFP Motion”). See Compl., ECF No. 1; Mot. to
Proceed in Forma Pauperis, ECF No. 2. On September 23, 2013, I denied Craig’s motion and
ordered him to pay the filing fee, Order, ECF No. 3, which he did on September 25, 2013.
Order, ECF No. 4. I then ordered the Clerk to prepare and issue a summons on October 1, 2013.
Id. Before serving the summons and complaint, Craig retained counsel and filed an Amended
Civil Complaint (the “First Am. Compl.”) on January 3, 2014 and a Second Amended Complaint
on January 26, 2014. Pl.’s Opp’n to Def.’s Mot. to Dismiss Pl.’s Second Am. Compl. (“Pl.’s
Opp’n”) 2, ECF No. 16; First Am. Compl., ECF No. 6; Second Am. Compl., ECF No. 7.
Melwood was served with the Summons and the Second Amended Complaint on January 27,
2014. Summons Return, ECF No. 8; Def.’s Mem. of Points and Authorities in Supp. of Its Mot.

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to Dismiss Pl.’s Second Am. Civil Compl. (“Def.’s Mem.”) 3, ECF No. 13-1; Pl.’s Opp’n 2.
Neither the original Complaint nor the First Amended Complaint ever were served on Melwood.
Def.’s Mem. 3.
Melwood has moved to dismiss this case based on insufficient service of process and, in
the alternative, moves to dismiss Counts III and IV because Craig did not exhaust his
administrative remedies prior to filing in this Court. Def.’s Mot. to Dismiss Pl.’s Second Am.
Civil Compl. (“Def.’s Mot.”), ECF No. 13; Def.’s Mem. 4. Craig has responded, Pl.’s Opp’n,
and the time has expired for Melwood to reply, Loc. R. 105.2(a). Having reviewed the filings, I
find that a hearing is not necessary. Loc. R. 105.6.
II.

DISCUSSION
A. Sufficiency of Service of Process
1. Timing of Service
Melwood has moved for dismissal on the grounds that service was untimely, arguing that

the summons and complaint were served outside of the 120-day period set by Fed. R. Civ. P.
4(m), and that Craig cannot show good cause as to why service was late. Def.’s Mem. 4–7.
Craig disputes Melwood’s premise and argues that service was timely because it occurred within
120 days of the Clerk issuing the Summons and shortly after he filed his Second Amended
Complaint. Pl.’s Opp’n 2.
Fed. R. Civ. P. 4(m) states:
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.

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Craig initially filed his Complaint on September 17, 2013 along with a motion to proceed in
forma pauperis. Compl.; IFP Motion. There is no dispute that service was not effected until
January 27, 2014, more than 120 days from the filing of the original Complaint. Pl.’s Opp’n 2.
However, Craig argues that the 120-day period should have been tolled during the time between
filing of the Complaint and the issuance of a summons by the Clerk. Id. at 5.
In Robinson v. Clipse, the Fourth Circuit held that, when a plaintiff seeks to proceed in
forma pauperis, the service period is “tolled until the district court [has] screened [the] in forma
pauperis complaint and authorized service of process, . . . [and] an in forma pauperis plaintiff
should not be penalized for a delay caused by the court’s consideration of his complaint. That
delay ‘is solely within the control of the district court.’” 602 F.3d 605, 608 (4th Cir. 2010)
(quoting Paulk v. Dep’t of Air Force, 830 F.2d 79, 83 (7th Cir.1987)). The Fourth Circuit
explained that “[b]ecause the delay caused by the court’s failure to authorize the issuance and
service of process is beyond the control of an in forma pauperis plaintiff, such failure constitutes
good cause requiring the 120-day period to be extended.” Robinson, 602 F.3d at 608. Therefore,
notwithstanding the language of Fed. R. Civ. P. 4(m), the 120-day period did not begin to run
immediately.
Although Craig filed his original Complaint on September 17, 2013, Compl., I did not
rule on the IFP Motion and order Craig to pay the filing fee until September 23, 2014. Order,
ECF No. 3. And though Craig paid the filing fee on September 25, 2010, Order, ECF No. 4, I
did not order the Clerk to issue a summons until September 30, 2013, id., and a summons was
not issued until the next day, October 1, 2013. Summons, ECF No. 5. Because he did not yet
have a valid summons, no amount of diligence would have allowed Craig to attempt service on
Melwood prior to October 1. From the time that Craig received the Summons from the Clerk,

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fewer than 120 days elapsed before he served the Summons, with a copy of the Second Amended
Complaint, on Melwood on January 27, 2014. Def.’s Mem 3; Pl.’s Opp’n 2; Summons Return.
Although Melwood argues that the service period should have begun immediately once
Craig paid his filing fee, Def.’s Mem. 6, this does not square with the reasoning of Robinson,
since the delay between filing and issuance of the summons was “‘solely within the control of
the district court.’” Robinson, 602 F.3d at 608 (quoting Paulk, 830 F.2d at 83). Because Craig
served the Summons and a complaint within 120 days of the day when he first became able to do
so, I find that service on January 27, 2014 was timely under Fed. R. Civ. P. 4(m).
2. Sufficiency of Process
Melwood also has argued that even if service was timely, Craig served the Summons
with the wrong complaint, and therefore that this case should be dismissed pursuant to Fed. R.
Civ. P. 12(b)(4) (sufficiency of process), or 12(b)(5) (sufficiency of service of process). Def.’s
Mot. 7–8. “If service is contested, the ‘plaintiff bears the burden of establishing the validity . . .
pursuant to Rule 4.’” Shlikas v. SLM Corp., No. WDQ-09-2806, 2011 WL 2118843, at *2 (D.
Md. May 25, 2011) (quoting O’Meara v. Waters, 464 F. Supp. 2d 474, 476 (D. Md. 2006)
(ellipsis in original)).
Melwood was served with the Summons along with a copy of the Second Amended
Complaint, but never was served the original Complaint or the First Amended Complaint. Def.’s
Mot. 9. Melwood argues that this was not valid service because, at the time that it was served,
the operative complaint was the First Amended Complaint and that, because Craig already had
amended his complaint once under Fed. R. Civ. P. 15(a)(1) and did not receive Melwood’s
consent or this Court’s leave to amend his complaint a second time, see Fed. R. Civ. P. 15(a)(2),
the Second Amended Complaint is a nullity, Def. Mem. 9. Craig argues that he was “entitled to

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file the Amended Complaint as of right, since it was filed before Defendant responded to the
original Complaint,” Pl.’s Opp’n 7, although he does not explain how his position can be squared
with the language of Rule 15, which allows a party to “amend its pleading once as a matter of
course,” Fed. R. Civ. P. 15(a)(1) (emphasis added).
Fed. R. Civ. P. 4(c) provides that “[a] summons must be served with a copy of the
complaint.” Melwood argues that Rule 4(c) requires that the original complaint necessarily must
be served with the summons. However, this plainly is not always true; a plaintiff may amend his
complaint once before service, Fed R. Civ. P. 15(a)(1)(A), and when he does so “an amended
pleading ordinarily supersedes the original and renders it of no legal effect.’” Young v. City of
Mount Rainer, 238 F.3d 567, 572 (4th Cir. 2001) (quoting Crysen/Montenay Energy Co. v. Shell
Oil Co., 226 F.3d 160, 162 (2d Cir.2000)); see also 4A Charles A. Wright et al., Federal
Practice & Procedure § 1093 (3d ed. 1998) (“service of a superseded complaint with the
summons does not fulfill the requirements of the rule. As one court has remarked, a superseded
complaint is ‘a mere scrap of paper.’” (internal citation omitted)). By right, Craig was allowed
to amend the complaint before serving Melwood, and the original complaint became “a mere
scrap of paper” on January 3, 2014 following the amendment. Therefore, service of the original
Complaint clearly would have been improper on January 27, 2014.
However, because Fed. R. Civ. P. 15(a)(1) allows a pleading to be amended only once as
a matter of course, Craig could not have filed his Second Amended Complaint without either
Melwood’s consent or leave of this Court. Fed. R. Civ. P. 15(a)(2). Melwood has not consented,
Def.’s Mem. 9, and its current motion suggests that it would not have consented if asked. But
Rule 15(a)(2) does not expressly require a motion before a court may grant leave, and the Rule
states that leave to amend should be granted “freely . . . when justice so requires.” The Fourth

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Circuit has held that a court should deny leave to amend only if the amendment would be
prejudicial to the opposing party, if it is pursued in bad faith, or if it would be futile. Laber v.
Harvey, 435 F.3d 404, 426–27 (4th Cir. 2006).
Although Craig failed to amend his complaint properly, I do not believe that he was
acting in bad faith in so doing, and Melwood does not suggest otherwise. Melwood also has not
argued that the amendment would be futile (with the exception of Counts III and IV, discussed
infra). And there is no prejudice here in any event. Melwood became aware of this action when
served with the Second Amended Complaint on January 27, 2014, within the period for service,
and the gravamen of Craig’s claim fundamentally did not change between the First and Second
Amended Complaints. See Davis v. Piper Aircraft, 615 F.2d 606, 613 (4th Cir. 1980) (“Because
defendant was from the outset made fully aware of the events giving rise to the action, an
allowance of the amendment could not in any way prejudice the preparation of defendant's
case.”). The changes do not set forth a new legal theory, but simply appear to add more detail to
the facts alleged by Craig. Cf. Laber, 438 F.3d at 427 (insertion of a new legal theory is a
common example of a prejudicial amendment).
Inattention to the rules of procedure and the consequences of failing to adhere to them
can delay or derail the prosecution of a claim. The provisions of the Federal Rules of Civil
Procedure that are at issue in this case are neither new nor unclear—a single amendment has
been allowed of right since the inception of the Rules.

See Fed. R. Civ. P. 15 advisory

committee’s note to 1937 Adoption (“The right to serve an amended pleading once as of course
is common.”).
However, it is “entirely contrary to the spirit of the Federal Rules of Civil Procedure for
decisions on the merits to be avoided on the basis of such mere technicalities,” Foman v. Davis,

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371 U.S. 178, 182 (1962), and the Fourth Circuit and this Court have a strong policy that cases
should be resolved on the merits, see U.S. v. Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir.1993);
Little v. Eastern Dist. Police Station, No. WDQ–13–1514, 2014 WL 271628, *3 (D. Md. Jan. 22,
2014); Dow v. Jones, 232 F. Supp. 2d 491, 494–95 (D. Md. 2002) (citing Shaffer, 11 F.3d at
453). Thus courts should be cautious not to let form trump substance so as to deprive the holders
of potentially meritorious claims of their day in court on the basis of procedural defects.
Because Melwood clearly was on notice and was not prejudiced by Craig’s amendments, I find
that justice requires me to grant leave for Craig to amend the First Amended Complaint, nunc
pro tunc to January 26, 2014. Accordingly, there now is no question that the Second Amended
Complaint was the operative complaint on January 27, 2014, and therefore Melwood was served
properly and its motion to dismiss must be DENIED.
B. Counts III and IV
In addition to its technical objections to the Second Amended Complaint, Melwood
argues that this Court lacks subject matter jurisdiction over Craig’s Maryland Human Relations
Act claims because he has not exhausted his administrative remedies. Def.’s Mot. 10. Craig has
conceded this point and consented to the dismissal of Counts III and IV of the Second Amended
Complaint. Pl.’s Opp’n 2. Accordingly, Counts III and IV will be DISMISSED.
C. Further Amendment of the Complaint
In his opposition, Craig also appears to seek leave to file a Third Amended Complaint,
identical to the Second Amended Complaint but for the omission of Counts III and IV. Although
Fed. R. Civ. P. 15 does not expressly require a motion before the court may grant leave to amend
a pleading, Fed. R. Civ. P. 7(b)(1) clearly states that “[a] request for a court order must be made
by motion.” By simply requesting leave in his opposition brief rather than comply with the

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requirements of the Federal Rules of Civil Procedure, Craig has not properly sought leave to
amend and, because doing so would not deprive him of any substantive rights, I decline to grant
leave sua sponte. Moreover, because this amendment makes no changes to the complaint other
than to strike counts that now have been dismissed, it is futile and would serve no purpose, and
would be denied in any event.
III.

CONCLUSION
For the aforementioned reasons, Plaintiff SHALL BE GRANTED leave to file his

Second Amended Civil Complaint, nunc pro tunc to January 26, 2014, and Defendant’s motion
to dismiss shall be GRANTED with respect to Counts III and IV, and otherwise DENIED.
Defendant SHALL ANSWER the complaint within twenty-one days.
A separate order shall issue.
Dated: July 16, 2014

/S/
Paul W. Grimm
United States District Judge

jml

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