Cichocki et al v. Massachusetts Bay Community College et al

Filing 31

Magistrate Judge Judith G. Dein: ORDER entered. MEMORANDUM OF DECISION AND ORDER denying without prejudice 10 Defendants' Motion to Dismiss. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

TIMOTHY E. CICHOCKI and
Y. DOLLY HWANG,
Plaintiffs,
v.
MASSACHUSETTS BAY
COMMUNITY COLLEGE, et al.,
Defendants.

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CIVIL ACTION
NO. 15-10663-JGD

MEMORANDUM OF DECISION AND
ORDER ON DEFENDANTS’ MOTION TO DISMISS
March 29, 2016
DEIN, U.S.M.J.
I. INTRODUCTION
This action arises out of events that occurred while the plaintiff, Timothy E. Cichocki
(“Cichocki”), was working as a Professor of Electrical Engineering at Massachusetts Bay
Community College (“MassBay”). Cichocki and his wife, plaintiff Y. Dolly Hwang (“Hwang”),
claim that over the course of many years, one of Cichocki’s colleagues at MassBay, Helen
McFadyen (“McFadyen”), engaged in a campaign of sexual and emotional harassment and
manipulation against them. They further claim after Cichocki complained to college officials
about McFadyen’s improper behavior, MassBay and its administrators engaged in a pattern of
unlawful conduct against Cichocki and Hwang. By their nine-count complaint, the plaintiffs,
who are proceeding pro se, have brought claims against MassBay; its President, Dr. John
O’Donnell (“O’Donnell”); it Chief Personnel Officer, Robin Nelson-Bailey (“Nelson-Bailey”); its

Human Resources Director, Valerie Gaines (“Gaines”); and three unnamed officers of MassBay’s
campus police force (the “John Doe defendants”). Specifically, Cichocki and Hwang have
asserted claims for negligence (Counts I and II); employment discrimination and retaliation in
violation of Title VII (Counts III and IV); breach of contract (Count V); violations of the Fair Labor
Standards Act, the Massachusetts Wage Act and the Access to Medical Report Act of 1988
(Count V); and violations of their constitutional rights pursuant to 42 U.S.C. § 1983 (Counts VIIX).
The matter is presently before the court on the “Defendants’ Motion to Dismiss”
(Docket No. 10). By their motion, the defendants are seeking dismissal of all of the plaintiffs’
claims, pursuant to Fed. R. Civ. P. 12(b)(5), due to insufficient service of process. They are also
seeking dismissal “for the reasons stated in Magistrate [Judge] Collings’ January 14, 2013
recommendation[,]” on the plaintiff’s motion for a preliminary injunction in a prior litigation
that Cichocki filed against MassBay and its administrators. As described below, this court finds
that the plaintiffs have failed to complete proper service of process upon any of defendants
within the time prescribed by the applicable rules, and that as a result, this court lacks
jurisdiction over the present claims. However, in light of the plaintiffs’ pro se status, and the
lack of any evidence of bad faith on the part of the plaintiffs or prejudice to the defendants if
the time for service is extended, this court concludes that Cichocki and Hwang should have an
additional opportunity to effectuate service. Accordingly, and for all the reasons detailed
herein, the defendants’ motion to dismiss is hereby DENIED WITHOUT PREJUDICE. The
plaintiffs shall have 30 days from the date of this decision to complete proper service upon
each of the identified defendants. In the event the plaintiffs fail to effectuate proper service
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within the extended time period, the defendants may renew their motion to dismiss on the
grounds of insufficient service of process. If, on the other hand, the plaintiffs are able to
complete proper service, the defendants may file a new motion to dismiss the complaint on the
merits.
II. BACKGROUND
Because this court finds that the plaintiffs’ failure to effect proper service of process is
dispositive of the motion to dismiss, the following background is limited to facts that are
relevant to that issue.
The plaintiffs commenced this action on March 4, 2015 by filing their complaint against
the defendants. (Docket No. 1). On July 13, 2015, this court issued an Order notifying the
plaintiffs that the action would be dismissed without prejudice, in 21 days from the date of the
Order, “unless a proof of service is filed or good cause shown why service has not been made.”
(Docket No. 5). Shortly thereafter, on July 20, 2015, the plaintiffs filed a document entitled
“Plaintiffs’ Filing Proof of Service.” (Docket No. 6). Therein, the plaintiffs purported to establish
proof of service upon each of the named defendants, pursuant to Fed. R. Civ. P. 4(m) and Local
Rule 4.1(b), by filing: (1) “Plaintiffs’ affidavit;” (2) “Server (Tatiana Mazariegos)’s affidavit;” (3)
Fedex delivery service requests;” and (4) “Fedex registered IDs for status of service[.]” (Id. at 12). Those documents show that on May 27, 2015, Tatiana Mazariegos, an employee at a
Federal Express store in Boston, sent Federal Express packages containing copies of a summons
and complaint to MassBay, O’Donnell, Nelson-Bailey and Gaines. (Docket No. 6 at 3-10). They
further show that the packages were sent to MassBay’s address in Wellesley Hills, Massachusetts, and that all of the packages, except the one directed to Gaines, were delivered to that
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address on or about May 28, 2015. (Id. at 3, 6). There is no indication that Ms. Mazariegos was
authorized, either by law or by appointment of a court, to effectuate service of process within
the Commonwealth of Massachusetts.
On July 27, 2015, the plaintiffs filed a document entitled “Plaintiffs’ Additional Filing of
Proof of Service and Request for a New Summons for Defendant Valerie Gaines.” (Docket No.
7). Therein, the plaintiffs submitted documents indicating that each of the Federal Express
packages containing copies of a summons and complaint had been delivered to MassBay’s
Wellesley Hills campus, and had been signed for by an individual identified as “J.Josslyn,” but
that the package directed to Gaines had been returned to Federal Express’ headquarters in
Memphis, Tennessee. (Id. at 3-9). They further explained that Gaines had recently retired from
MassBay, and they requested the issuance of a new summons so they could deliver copies of
the summons and complaint to Gaines’ home in Framingham, Massachusetts. (Id. at 1). The
court subsequently issued a new summons to the plaintiffs for service on Gaines. (Docket No.
8). However, there is nothing in the record to indicate that the plaintiffs made any effort to
serve Gaines at her home.
The defendants filed the pending motion to dismiss on July 31, 2015. During a hearing
on the motion, this court gave the defendants an additional 30 days to file a Reply Memorandum, and allowed the plaintiffs to file a response within 14 days following the filing of any
Reply. (See Docket Entry dated 10/27/2015). Thereafter, the defendants submitted a Reply
Memorandum in which they confirmed that they were seeking dismissal of the complaint “for
the reasons stated in Magistrate [Judge] Collings’ January 14, 2013 recommendation” in the
prior litigation, as well as on the grounds of insufficient service of process. (See Docket No. 26).
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They also asserted that “any claims previously dismissed in the previous case . . . for failure to
exhaust administrative remedies are now time-barred.” (Docket No. 26 at 1). Thus, they are
seeking dismissal both under Fed. R. Civ. P. 12(b)(5) and on the merits of the complaint.
The plaintiffs insist that the prior litigation has no relevance to their current claims, and
they have attempted to highlight the differences between that case and the present litigation.
(See Docket Nos. 12, 19, 27). In addition, the plaintiffs maintain that the defendants were
properly served process in accordance with the Federal Rules of Civil Procedure, and they
continue to rely on the delivery of packages by Federal Express to support their assertion that
service was completed. (See Docket Nos. 24, 25, and 27 ¶ 3). For the reasons detailed below,
this court finds that the plaintiffs’ efforts at service were insufficient, and that the court lacks
jurisdiction over the merits of the dispute.
III. ANALYSIS
“Before a federal court may exercise personal jurisdiction over a defendant, the
procedural requirements of service of process must be satisfied.” Aly v. Mohegan Council-Boy
Scouts of Am., Civil Action No. 08-40099-FDS, 2009 WL 3299951, at *1 (D. Mass. Apr. 20, 2009).
Where, as here, “the sufficiency of process is challenged under Rule 12(b)(5), . . . [the] plaintiff
bears ‘the burden of proving proper service.’” Id. at *2 (quoting Lopez v. Municipality of
Dorado, 979 F.2d 885, 887 (1st Cir. 1992)). As detailed above, the record establishes that the
plaintiffs attempted to complete service of process on each of the defendants by sending
Federal Express packages containing copies of the summons and complaint to MassBay’s
campus in Wellesley Hills, Massachusetts. Although this court finds that the plaintiffs’ method
of service was inadequate to satisfy the applicable procedural requirements, this court
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concludes that the motion to dismiss should be denied without prejudice in order to give the
plaintiffs additional time to complete service in accordance with the applicable rules.
Failure to Serve the Individual Defendants
Rule 4 of the Federal Rules of Civil Procedure governs the manner in which service of
process can be effected. In particular, Rule 4(e) provides four ways in which a plaintiff may
serve process upon individuals, such as O’Donnell, Nelson-Bailey and Gaines, who are located in
the United States. First, the plaintiff may complete service 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[.]” Fed. R. Civ. P. 4(e)(1). Alternatively, the plaintiff
may serve an individual defendant by:
(A) delivering a copy of the summons and of the complaint to the
individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of
abode with someone of suitable age and discretion who resides
there; or
(C) delivering a copy of each to an agent authorized by appointment or
by law to receive service of process.
Fed. R. Civ. P. 4(e)(2). In the instant case, it is undisputed that the plaintiffs did not attempt to
serve the individual defendants personally. Nor is there any indication that the plaintiffs
attempted to complete service of process by leaving a copy of the necessary documents at the
individual defendants’ “dwelling or usual place of abode.” Moreover, the plaintiffs have not
shown that J.Josslyn, the individual who signed for the Federal Express packages that were
delivered to MassBay, was an agent authorized to receive service of process on behalf of the

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individual defendants. Accordingly, the only remaining question is whether under Massachusetts law, the plaintiffs were authorized to complete service upon the individual defendants by
delivering the summons and complaint to the Wellesley Hills campus of MassBay by way of
express mail. This court finds that there is no such authority.
“The Massachusetts rules for service are substantially similar to the other three options
under the federal rules.” Mukherjee v. Blake, Civil Action No. 12-11381-FDS, 2013 WL 2299521,
at *2 (D. Mass. May 24, 2013). Thus, under Rule 4 of the Massachusetts Rules of Civil
Procedure, service can be made
[u]pon an individual by delivering a copy of the summons and of the
complaint to him personally; or by leaving copies thereof at his last and
usual place of abode; or by delivering a copy of the summons and of the
complaint to an agent authorized by appointment or by statute to receive
service of process, provided that any further notice required by such
statute be given.
Mass. R. Civ. P. 4(d)(1). While the “Massachusetts rules permit service by mail . . . for service of
process outside the Commonwealth[,]” they do not permit such service upon individuals within
Massachusetts. Mukherjee, 2013 WL 2299521, at *2. Therefore, “neither the federal rules nor
the Massachusetts rules permit service upon an individual by [express] mail at [his or] her place
of employment.” Id. (emphasis in original). The plaintiffs’ attempted service upon defendants
O’Donnell, Nelson-Bailey and Gaines was insufficient under all of the applicable rules.1

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Under the Massachusetts Rules of Civil Procedure, service of process within the Commonwealth must be made
“by a sheriff, by his deputy, or by a special sheriff; by any other person duly authorized by law; [or] by some person
specially appointed by the court for that purpose[.]” Mass. R. Civ. P. 4(c). In the instant case, the plaintiffs have
failed to show that any such individual was involved in serving process upon the defendants. Thus, their efforts at
service were insufficient under Massachusetts law for this reason as well.

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Failure to Serve MassBay
The plaintiffs have similarly failed to meet their burden of establishing proper service of
process upon MassBay. MassBay is a public institution, which is “a unit of the Massachusetts
State College System[.]” Sys. Mgmt., Inc. v. Loiselle, 303 F.3d 100, 101 (1st Cir. 2002).
Therefore, service upon that defendant is governed by Federal Rule of Civil Procedure 4(j). See
Fed. R. Civ. P. 4(j)(2) (setting forth requirements for completing service upon “[a] state, a
municipal corporation, or any other state-created governmental organization that is subject to
suit”). Under Rule 4(j), service upon a state institution such as MassBay can be made in either
of two ways:
(A) delivering a copy of the summons and of the complaint to its chief
executive officer; or
(B) serving a copy of each in the manner prescribed by that state’s law
for serving a summons or like process on such a defendant.
Fed. R. Civ. P. 4(j)(2). Here, the plaintiffs have not shown that they satisfied either option.
As described above, there is no dispute that the summons and complaint were delivered
to the college by Federal Express, and were received by an individual identified only as
“J.Josslyn.” (See Docket No. 7, Ex. 1). “However, the use of [express] mail is not sufficient to
constitute ‘delivering’” within the meaning of Rule 4(j). Gilliam v. Cty. of Tarrant, 94 Fed. Appx.
230, 230, 2004 WL 816394, at *1 (5th Cir. Apr. 15, 2004). See also In re TFT-LCD (Flat Panel)
Antitrust Litig., Nos. M 07-1827 SI, C 09-1115 SI, MDL No. 1827, 2009 WL 4874872, at *2 (N.D.
Cal. Oct. 6, 2009) (finding that “plaintiff’s service by certified mail does not satisfy requirements
under Rule 4”). Moreover, the plaintiffs do not dispute that O’Donnell is the chief executive
officer of MassBay. (See Docket No. 26 at 4; Docket No. 27 ¶ 3). Because the Federal Express
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packages were received by J.Josslyn rather than O’Donnell, the plaintiffs have not shown that
service was made upon the college’s chief executive officer, as required under Rule 4(j)(2)(A).
The plaintiffs’ attempt at service fares no better under state law. Pursuant to the
Massachusetts Rules of Civil Procedure, service of process upon the Commonwealth or any of
its agencies must be accomplished
by delivering a copy of the summons and of the complaint to the Boston
office of the Attorney General of the Commonwealth, and, in the case of
any agency, to its office or to its chairman or one of its members or its
secretary or clerk. Service hereunder may be effected by mailing such
copies to the Attorney General and to the agency by certified or
registered mail.
Mass. R. Civ. P. 4(d)(3). In this case, however, there is no indication that the plaintiffs
attempted to serve, much less completed service upon, the office of the Attorney General.
Accordingly, the record establishes that service of process upon MassBay was inadequate as
well.
Extension of Time for Service
The record establishes that the time to complete proper service upon the defendants
has expired. Nevertheless, this court finds that dismissal of the plaintiffs’ claims is not
warranted at this time.
Fed. R. Civ. P. 4(m) sets forth the time limit for completing service of process upon a
defendant. At the time Cichocki and Hwang initiated this action,2 Rule 4(m) provided in
relevant part as follows:
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
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Rule 4(m) was amended on December 1, 2015, nearly nine months after the plaintiffs filed their complaint. The
amendment reduced the time limit for completing service of process from 120 days to 90 days.

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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.
The plaintiffs filed the complaint on March 4, 2015. (Docket No. 1). Therefore, the 120-day
period for service elapsed on July 2, 2015.
The plaintiffs dispute that service upon the defendants was improper. Consequently,
they have not attempted to establish good cause for their failure to effectuate proper service
within the time required under Rule 4. Moreover, the fact that they are proceeding pro se “is
not automatically enough to constitute good cause for purposes of Rule 4(m).” McIsaac v. Ford,
193 F. Supp. 2d 382, 383 (D. Mass. 2002) (quoting Wright & Miller, Fed. Practice & Procedure:
Civil 3d § 1137, at 342 (2002)). Nevertheless, “[e]ven if plaintiff[s’] missteps do not amount to
good cause such that the Court must grant [them] an extension of time, the Court . . . has
discretion under Rule 4(m), even absent a showing of good cause, to extend the time for
service.” Aly, 2009 WL 3299951, at *3. For the reasons that follow, this court finds that an
extension is appropriate in this case.
In addition to the fact that the plaintiffs are proceeding pro se, “and [the] rules of
service of process are certainly not intuitive[,]” there is no evidence that they have acted in bad
faith or that their failure to comply with the applicable rules of civil procedure was intentional.
See id. Furthermore, there is nothing in the record to suggest that the defendants would be
prejudiced by an extension of time to complete service. The record shows that despite the
insufficiency of service, the defendants received actual notice of the claims against them and
were able to file a response to those claims, in the form of their motion to dismiss, within days
after the plaintiffs filed their purported proof of service. (See Docket Nos. 6 & 10). “[T]he fact
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that Defendant[s] herein [have] notice of the nature of Plaintiff[s’] claims discounts any minimal
risk of prejudice that might result from the limited extension of time to file that the Court has
determined to authorize.” Aly, 2009 WL 3299951, at *3 (quoting Henry v. Cooper Univ. Hosp.,
2008 U.S. Dist. LEXIS 71235, at *6-7 (D.N.J. Sept. 17, 2008)). Accordingly, the defendants’
motion to dismiss for insufficient service of process will be denied without prejudice, and the
plaintiffs are given 30 days to complete service upon those parties in accordance with Fed. R.
Civ. P. 4.3 If the plaintiffs fail to effectuate proper service within the extended time period, the
defendants may renew their motion to dismiss on the grounds of insufficient service of process.
B.

Motion to Dismiss the Complaint on the Merits

The defendants have also moved to dismiss the complaint on the merits for the reasons
stated in a Report and Recommendation on Plaintiff’s Motion for a Preliminary Injunction that
was issued by Magistrate Judge Collings in a prior litigation. However, until Cichocki and Hwang
complete sufficient service, this court is precluded from exercising jurisdiction over the defendants. See Hemispherx Biopharma, Inc. v. Johannesburg Consol. Invs., 553 F.3d 1351, 1360
(11th Cir. 2008) (“Service of process is a jurisdictional requirement: a court lacks jurisdiction
over the person of a defendant when that defendant has not been served” (quotations and
citation omitted)). Accordingly, it would be premature to address the defendants’ motion to
dismiss on this basis. The motion to dismiss on the merits is therefore denied as well. In the
event the plaintiffs are able to complete proper service of process, the defendants may file a
new motion to dismiss the complaint on the merits within the time prescribed by Fed. R. Civ. P.

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To the extent the plaintiffs have been able to identify any of the John Doe defendants, they shall complete
service of process upon those defendants within the time set forth herein.

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12. Any such motion shall set forth the reasons, in detail, for the defendants’ contention that
the plaintiffs have failed to state a claim for relief in this case.4
IV. CONCLUSION
For all the reasons detailed herein, the “Defendants’ Motion to Dismiss” (Docket No. 10)
is DENIED WITHOUT PREJUDICE. The plaintiffs shall have 30 days from the date of this decision
to complete proper service of process upon each of the identified defendants. In the event the
plaintiffs fail to do so within the extended time period, the defendants may renew their motion
to dismiss on the grounds of insufficient service of process. If, on the other hand, the plaintiffs
are able to complete proper service, the defendants may file a new motion to dismiss the
complaint on the merits.

/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge

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A reading of the complaint indicates that while there is a significant overlap between the claims in this case and
the claims in Cichocki’s prior litigation against the defendants, the cases are not identical. Furthermore, it appears
that at least some of the issues addressed by Judge Collings in his Report and Recommendation, such as the issue
of exhaustion of administrative remedies, are not applicable to the plaintiffs’ present claims. Therefore, if the
defendants seek dismissal of this action on the merits, they shall provide detailed reasons as to why the plaintiffs
have failed to state a claim upon which relief may be granted.

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