Dent v. University of Maryland et al

Filing 17

MEMORANDUM OPINION (c/m to Plaintiff 12/2/16 sat). Signed by Judge Deborah K. Chasanow on 12/2/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MELISSA DENT
:
v.

:

Civil Action No. DKC 16-2446

:
MD SMALL BUSINESS DEVELOPMENT
CENTER, et al.

:

MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

in

this

employment discrimination action is a motion to dismiss filed by
Defendants

University

of

Maryland,

Small Business Development Center.

College

Park

(ECF No. 8).

and

Maryland

The issues are

fully briefed and the court now rules pursuant to Local Rule
105.6, no hearing being deemed necessary.

For the reasons that

follow, Defendants’ motion will be denied in part and granted in
part.
I.

Background
On

this

June

action

29,

2016,

against

Plaintiff,

Defendants.

through

counsel,

Summonses

were

commenced

issued

and

electronically provided to counsel for service on June 30.
On October 26, Plaintiff submitted to the Clerk a paper
titled

“Revocation

of

Power

of

Attorney”

attesting

that

she

revoked power of attorney to her attorney’s firm, Tully Rinckey,
PLLC

as

of

October

24

and

will

be

proceeding

pro

se.

Subsequently Plaintiff, pro se, filed proofs of service for both
defendants on October 27 and October 28 (ECF Nos. 6 and 7).

On

November

14,

Defendants

filed

the

instant

motion.

Plaintiff, again pro se, filed a response in opposition and an
amended complaint (ECF Nos. 11 and 10, respectively).

The court

provided Plaintiff 14 days to supplement her amended complaint
with

a

red-line

version

pursuant

to

Local

Rule

103.6.c

on

November 18 and also sent correspondence to Plaintiff’s counsel
requesting

her

to

advise

the

court

of

the

status

representation of Plaintiff (ECF Nos. 12 and 13).

of

her

Defendants

filed a reply on December 1 (ECF No. 14).
Defendants’

motion

relates

that

a

member

of

Plaintiff’s

counsel’s firm, Jason Aroz, sent Defendants’ counsel a courtesy
copy of the complaint via email on July 14 and August 9.

The

transmittals specifically stated that they were not meant to
effectuate

service

but

rather

to

provide

Defendants

with

a

courtesy notice in the event that Defendants wished to engage in
preliminary settlement discussions.
II.

Service of Process
Defendants have moved to dismiss for insufficient service

of process under Rule 12(b)(5).

Rule 4(m) requires a plaintiff

to serve a defendant “within 90 days after the complaint is
filed.” If the defendants have not been served within this time
frame,

“the

prejudice

court

against

(emphasis added).

.

.

that

.

must

dismiss

defendant.”

Fed.

the
R.

action
Civ.

without
P.

4(m)

However, “if the plaintiff shows good cause

2

for the failure, the court must extend the time for service for
an appropriate period.”
“Good

cause”

Id.

generally

requires

the

Plaintiff

to

demonstrate that she exercised “reasonable diligence in trying
to effect service.” Jones v. Sears and Roebuck, No. DKC-15-3092,
2016 WL 1696557, at *2 (D. Md. Apr. 28, 2016). Circumstances
amounting to good cause may be “where a defendant is evading
service; where the plaintiff experienced difficulty in obtaining
a defendant’s proper address; where court staff misdirected a
pro se plaintiff as to the appropriate procedure for service; or
where plaintiff was unaware of the defendant in service until
after

the

deadline

expired.”

Id.

(citing

Hoffman

v.

Balt.

Police Dep’t, 379 F. Supp. 2d 778, 786 (D. Md. 2005)).
Defendants contend that Plaintiff did not effect service
until October 24, 2016, which was 27 days past Rule 4(m)’s 90
day deadline.

Plaintiff’s response in opposition, filed pro se,

argues that she consulted and abided by the instructions for
filing a civil action found on the court’s website which (at the
time) advised her that she had 120 days to effect service.1

She

concedes that her attorney did not properly serve Defendants and
states

that

she

“took

the

steps

1

to

protect

her

rights.”

Fed.R.Civ.P. 4(m) was amended on December 1, 2015 to impose
a 90-day timeframe within which to serve.
Previous to this
amendment, a party was provided 120-days to serve. Upon review
of Plaintiff’s response, the court researched its instructions
on the website and found that its instructions had not been
properly updated to reflect the amendment.
3

Further, she was unaware that her attorney had not withdrawn
until the Clerk advised her when she brought paperwork to the
courthouse to be filed on October 24.2
In the interest of justice and recognizing Plaintiff’s pro
se

status,

the

court

untimely service.

will

deny

the

motion

to

dismiss

for

She acted reasonably promptly to remedy the

service issue and was misled by the court’s erroneous website
information.

The brief delay was not prejudicial.

III. Status of MSBDC
Defendants also request that Defendant MSBDC be dismissed,
presumably

pursuant

to

Fed.R.Civ.P.

12(b)(6),

because

it

operates as an entity within the University and is therefore a
unit within the University, not a separate entity, and it would
be redundant to sue both.

Plaintiff appears to dispute some of

the

then

assertions

made,

but

concedes

separate entity is not necessary.

that

suing

it

as

a

Accordingly, MSBDC will be

dismissed as a defendant.
IV.

Conclusion
For

the

foregoing

reasons,

Defendant’s

denied in part and granted in part.

motion

will

be

A separate order will

follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
2

Plaintiff’s counsel has now filed a motion to withdraw as
counsel, which will be granted.
The motion recites that
counsel has not performed any services with regard to this case
since June.
4