ROYAL v. DABNEY et al
MEMORANDUM OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 5/3/17. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
No. 16-2535 (JBS/JS)
PAMELA MILLER DABNEY, et al.,
SIMANDLE, Chief Judge:
This matter is before the Court upon the motion by
Defendant Johanna Sunkett McBride to dismiss the complaint for
insufficient service of process under Rule 12(b)(5), Fed. R.
Civ. P. [Docket Item 12] and Plaintiff Gregory Royal’s Motion to
Strike [Docket Item 16]. For the following reasons, the Court
will grant the motion to dismiss and deny the motion to strike.
The Court recounts the following facts gleaned from
the complaint, presumed true for the purposes of this motion. In
short, pro se Plaintiff Gregory Royal asserts that he was
coerced into signing false documents that defrauded him of his
deceased wife’s estate. (Complaint [Docket Item 1] at ¶ 10.) Mr.
Royal brings claims against, inter alia, Joanna Sunkett McBride,
one of his sisters-in-law, alleging that she is “responsible for
advocating for the same machinations to defraud and deprive” him
of his deceased wife’s estate. (Id. at ¶ 8.) Mr. Royal filed
this § 1983 claim in state court on December 10, 2015 and
another defendant, Cheryl Nidorf Austin, removed the case to
federal court on May 4, 2016. [Docket Item 1.]
Under Rule 12(b)(5), Fed. R. Civ. P., a defendant may
move to dismiss on the grounds that service of process was
insufficient, or in other words that the method and timing of
the documents served was inadequate. Ms. McBride contends in her
motion that she never personally received process, and was only
notified about the existence of this case in June 2016, when
counsel for Defendant Austin sent Ms. McBride a letter.
(Certification of Johanna Sunkett McBride (“McBride Cert.”)
[Docket Item 12-1] at ¶¶ 2, 4-5.) In particular, Ms. McBride
states that she “never received by mail, certified or otherwise,
a copy of a summons and complaint in this case.” (Id. at 5.)
Mr. Royal filed an opposition to Ms. McBride’s motion,
addressing Ms. McBride’s certification and moving to strike her
motion under Rule 12(f)(2), Fed. R. Civ. P. (Certification of
Gregory Royal (“Royal Cert.”) [Docket Item 16.] Mr. Royal
asserts that he sent Ms. McBride a copy of the summons and
complaint to her home in Gainesville, Florida by certified mail,
and attaches a copy of the certified mail receipt and envelope
addressed to Ms. McBride marked “RETURN TO SENDER.” (Id. at ¶ 2,
Exhibit A.) He contends that the proof of service he filed,
required by N.J. Ct. R. 4:4-7, described his “reasonable and
good faith attempt” to make personal service before serving Ms.
McBride by mail. (Id. at ¶ 5.)
Rule 4(e), Fed. R. Civ. P., governs methods of service
and provides that service upon an individual must be made by
either (1) following law for serving summons in the state where
the district court is located, or (2) by one of the following:
(A) delivering a copy of the summons and complaint to the
individual personally, (B) leaving a copy of the summons and
complaint at the individual’s dwelling with someone of suitable
age and discretion, or (C) delivering a copy of the summons and
complaint to an agent authorized by appointment or by law to
receive service of process. A plaintiff must serve defendants
within 90 days of filing his complaint. Fed. R. Civ. P. 4(m).
New Jersey law provides that service of process may be
effected by mail, instead of by personal service, under two
circumstances. First, a plaintiff may attempt to serve a
defendant in the first instance by “registered, certified or
ordinary mail,” but this service is only considered valid where
“the defendant answers the complaint or otherwise appears in
response thereto” within 60 days following mailed service. N.J.
Ct. R. 4:4-4(c). Second, if a plaintiff files an affidavit of
diligent effort satisfying the requirements of N.J. Ct. R. 4:45(b) that establishes that “despite diligent effort and inquiry
personal service cannot be made” within the state of New Jersey
in accordance with N.J. Ct. R. 4:4-4(a), then service may be
made by simultaneously sending copies of the summons and
complaint by registered or certified mail, return receipt
requested, and by ordinary mail. N.J. Ct. R. 4:4-4(b)(1)(C).
Service by mail under this provision “is valid even if the
defendant does not answer or appear.” Citibank, N.A. v. Russo,
759 A.2d 865, 868 (N.J. App. Div. 2000).
The Court finds that Mr. Royal’s mailing did not
constitute proper service under either N.J. Ct. R. 4:4-4(c) or
4:4-4(b)(1)(C). First, because Ms. McBride did not “answer the
complaint or otherwise appear” within 60 days of when Mr.
Royal mailed her copy of the summons and complaint – apparently
on March 29, 2016, according to the postage on the copy of the
envelope Mr. Royal attached as Exhibit A to his certification –
service by mail is not valid under N.J. Ct. R. 4:4-4(c). Second,
even if the Court construes Mr. Royal’s assertion that his proof
of service required by N.J. Ct. R. 4:4-7 describing his efforts
to serve Ms. McBride personally as an affidavit of diligent
effort for the purposes of N.J. Ct. R. 4:4-4(b)(1), Mr. Royal
did not comply with N.J. Ct. R. 4:4-4(b)(1)(C) because he sent a
copy of the summons and complaint by certified mail, return
receipt requested, but did not simultaneously send a copy by
ordinary mail. The Rules required Mr. Royal to send copies by
both means in order to effect valid service upon Ms. McBride.
In sum, Mr. Royal has not met the requirements of the
New Jersey rules for service of process. See Driscoll v.
Burlington-Bristol Bridge Co., 86 A.2d 201, 230 (N.J. 1952)
(“The requirements of the rules with respect to service of
process go to the jurisdiction of the court and must be strictly
complied with.”). The Court will grant Ms. McBride’s motion and
will dismiss the complaint against her for insufficient service
The Court will likewise deny Mr. Royal’s motion to
strike Ms. McBride’s motion under Fed. R. Civ. P. 12(f). Rule
12(f) allows the Court to strike “from any pleading any
insufficient defense or any redundant, immaterial, impertinent,
or scandalous matter.” Fed. R. Civ. P. 12(f). “[A] court should
not grant a motion to strike a defense unless the insufficiency
of the defense is ‘clearly apparent.’” Cipollone v. Liggett
Group, Inc., 789 F.2d 181 (3d Cir. 1986). Ms. McBride’s
meritorious motion is plainly not insufficient and will not be
stricken from the record.
The Court notes from the docket that Defendant Cheryl
Nidorf Austin has stated a Crossclaim for Contribution and/or
Indemnification against Ms. McBride [see Docket Item 4], and the
Court cannot determine from the docket whether Ms. Austin duly
served Ms. McBride with her crossclaim. Accordingly, Ms.
McBride’s status as a crossclaim defendant or as a third-party
defendant is not determinable at this time.
An accompanying order will be entered.
May 3, 2017
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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