Lu v. Frates, Et Al

Filing 16

Chief Judge Patti B. Saris: ORDER entered. MEMORANDUM AND ORDER. It is hereby ordered that this action is dismissed without prejudice for failure to serve pursuant to Fed. R. Civ. P. 4(m). The Clerk shall enter a separate order of dismissal.(PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
FRIEDRICH LU,
Plaintiff,

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v.
TIMOTHY FRATES, et al.,
Defendants.

Civ. Action No. 17-10518-PBS

MEMORANDUM AND ORDER
November 7, 2017
SARIS, C.D.J.
For the reasons set forth below, this action is dismissed
without prejudice for failure to serve pursuant to Fed. R. Civ. P.
4(m).
BACKGROUND
Plaintiff Friedrich Lu initiated this action on March 31,
2017 by filing a complaint concerning an incident that occurred
eight days earlier outside of the Suffolk County House of
Correction.

See Docket No. 1.

The complaint names as defendants

four correctional officers and the Suffolk County Sheriff’s
Department.

Id.

With the complaint, plaintiff filed a motion for

temporary restraining order and preliminary injunction.
Docket No. 2.

Plaintiff paid the $400.00 filing fee and the Clerk

issued summonses.
motion was denied.

See Docket Nos. 5, 6.

Plaintiff’s emergency

See Docket No. 7.

On May 3, 2017, plaintiff moved for default.
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See

See Docket No.

Plaintiff avers that he “sent processes for all defendants to

general counsel via the certified mail on Apr 3 previous.”

Id.

In an effort to explain why he served the general counsel by mail,
plaintiff states that in a 2015 action, the general counsel for
the Suffolk County Sheriff’s Department had agreed to accept
service by mail in Lu v. Dalton, et al., C.A. No. 15-13349-GAO.
Id.

With his motion for default, plaintiff attaches a copy of the

9/16/15 email in which the general counsel agreed to accept
service of plaintiff’s 2015 complaint by certified mail.

Id.

On May 25, 2017, the Court denied plaintiff’s request for
default because Lu had not met his burden of proving timely and
proper service of process.

See Docket No. 11.

At that time, the

90 day period had not yet expired for service of the summonses,
which were issued on March 31, 2017.

Id.

In his response to the Court’s May 25, 2017 Order, plaintiff
explained that the defendants “had been properly served with
process” and that it would be “superfluous to serve them again
with the same.”

See Docket No. 12.

By Order dated August 31, 2017, the Court found that, despite
plaintiff’s argument to the contrary, he failed to meet his burden
of proving timely and proper service of process as required by
Fed. R. Civ. P. 4(l)(1).

Plaintiff was ordered to show cause why

this case should not be dismissed for failure to serve pursuant to
Fed. R. Civ. P. 4(m).
Now before the Court is plaintiff’s timely show cause
response.

See Docket No. 15.

In his one-page response, plaintiff
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directs the Court to “[r]ead his (plaintiff’s) lips: Defendants
were properly served with process, and the court’s personal
jurisdiction attaches.”

Id. at ¶ 2.

Plaintiff argues that “all

defendants should have been defaulted” because “none of them filed
an ‘affidavit denying agency.’”

Id. at ¶ 3.

DISCUSSION
To properly serve the individual defendants, they must be
served personally, at their homes, or via an agent authorized to
accept service on their behalf in their individual capacities.
See Fed. R. Civ. P. 4(e).

As to the Suffolk County Sheriff’s

Department, a party is required to (1) deliver “a copy of the
summons and of the complaint to its chief executive officer” and
(2) serve “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).

The Massachusetts Rules of Civil

Procedure requires that, to effect service on any agency of the
Commonwealth, the plaintiff must deliver a copy of the summons and
the complaint to “the Boston office of the Attorney General of the
Commonwealth, and ... to [the agency's] office or to its chairman
or one of its members or its secretary or clerk.”

Mass. R. Civ.

P. 4(d) (3).
Here, plaintiff states that he sent the summonses by
certified mail to the general counsel for the Suffolk County
Sheriff’s Department.

Plaintiff is mistaken in his contention
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that the general counsel is now required to receive service of
process in the instant action simply because he agreed to accept
service by mail in an earlier action.

Despite plaintiff’s

argument to the contrary, he has not demonstrated that he properly
effectuated service.

See Donnelly v. UMass Corr. Med. Program,

No. 09–11995–RGS, 2010 WL 1924700, at *1 (D. Mass. May 11, 2010)
(when attempting to effect service pursuant to 4(e)(C), “the agent
served must possess the authority to accept service on behalf of
the defendant.”).

Here, there is no indication that any of the

defendants had authorized the general counsel to accept service on
their behalf.

Accordingly, this action is subject to dismissal

without prejudice.
ORDER
Based on the foregoing, it is hereby ordered that this action
is dismissed without prejudice for failure to serve pursuant to
Fed. R. Civ. P. 4(m).

The Clerk shall enter a separate order of

dismissal.
SO ORDERED.
/s/ Patti B. Saris
PATTI B. SARIS
CHIEF UNITED STATES DISTRICT JUDGE

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