PONCIANO v. SHARP et al

Filing 11

MEMORANDUM OPINION AND ORDER that Plaintiffs shall establish that proper service was effected within 30 days of the date of this Order. If proof of service is not filed within 30 days of the date of this Order and Plaintiffs do not show good cause as to why this action should not be dismissed, the Court will dismiss the action. Signed by Judge Claire C. Cecchi on 6/22/16. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No. 15-2600 (CCC)

FELICIA PONCIANO, et al.,
Plaintiffs,

MEMORANDUM OPINION
AND ORDER

v.

STEFANTE SHARP, et a!,
Defendants.

THIS MATTER comes before the Court on pro se Plaintiff Felicia Ponciano (“Plaintiff’)

filing of Summons Return Executed. ECF No. 10. It appearing that:
1. Plaintiff, proceeding pro se, filed the Complaint in this action on Aril 10, 2015 against
Defendants

Stephanie

Sharp

and Jersey

Health

Alliance,

LLC.

(collectively,

“Defendants”). ECF No. 1.
2. On January 8,2016, the Court issued a Notice of Call for Dismissal Pursuant to Federal
Rule of Civil Procedure 4(m) (the “4(m) Notice”), as Plaintiffs had not established that
proper service was effected on Defendants within 120 days of the filing of the Complaint.
See ECF No.9.
3. On January 19, 2016, Plaintiffs filed Return of Service forms for Defendant Stephanie
Sharp, indicating that she had effected service by mailing the Summons and Complaint to
each of the Defendants via

priority

mail. See ECF Nos. 10.

4. Federal Rule of Civil Procedure 4(m) provides that “[i]f 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.” Fed. R. Civ. P. 4(m). “[I]f the plaintiff shows
good cause for the failure, the court must extend the time for service for an appropriate
period.” j
5. federal Rule of Civil Procedure 4(h) governs service on a corporation, partnership or
association.

Under Rule 4(h), service must be completed either (A) in the manner

prescribed by Rule 4(e)(l), which allows the plaintiff to follow the law of the state in which
the district court is located, or (B) “by delivering a copy of the summons and the complaint
to an officer, a managing or general agent, or any other agent authorized by appointment
or by law to receive service of process and—if the agent is one authorized by statute and
the statute so requires—by also mailing a copy of each to the defendant.” Fed. R. Civ. P.
4(h).
6. The term “delivering” in Rule 4(h)(1)(B) does not include service by mail. See Travelodge
Hotels Inc. v. Vijay mv., LLC, No. 07-4033, 2007 WL 4557641, at *1 (D.N.J. Dec. 21,
2007) (collecting cases).
7. Plaintiff may serve a corporation, partnership or association by following the New Jersey
Rules of Court (pursuant to Rule 4(e)(l)), and those rules provide the following: “If it
appears by affidavit satisfying the requirements of R. 4:4-5(b) that despite diligent effort
and inquiry personal service cannot be made in accordance with paragraph (a) of this rule,”
service may be effectuated by “mailing a copy of the summons and complaint by registered
or certified mail, return receipt requested, and, simultaneously by ordinary mail to

.

.

.

a

corporation, partnership or unincorporated association that is subject to suit under a
recognized name, addressed to a recognized agent for service, or to its principal place of

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business, or to its registered office.” N.J. Ct. R. 4:4-4(b)(1)(C).
8. Plaintiffs did not file an affidavit showing that “despite diligent effort and inquiry, personal
service cannot be made” in accordance with New Jersey Court Rule 4:4-4(a). Therefore,
serving Defendants by mail is insufficient. See Capers v. Quest Capital Strategies, No. 065780, 2007 WL 2033831, at *2 (D.N.J. July 10, 2007) (denying default judgment where
plaintiff served defendant “via certified mail at its New York office,” and noting that “[i]n
New Jersey, service can be made by certified mail, but after personal service is
unsuccessful”); cf Travelodge, 2007 WL 4557641, at *2.
9. Moreover, according to the Return of Service that Plaintiff filed with the Court as to
Defendant Stephanie Sharp, the Summons and Complaint were never delivered to that
Defendant. See ECF No. 12.
10. In light of Plaintiffs’ pro se status, the Court will grant Plaintiffs one final opportunity to
effect service properly on Defendants, within thirty (30) days of the date of this Order. See
Fed. R. Civ. P. 4(m) (“[I]f the plaintiff shows good cause for the failure [to effect service
within 120 days,] the court must extend the time for service for an appropriate period.”).
Accordingly,
ITISonthis2dayof

J

,2016,

ORDERED THAI:
1. Plaintiffs shall establish that proper service was effected within thirty (30) days of the date
of this Order.

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2. If proof of service is not filed within thirty (30) days of the date of this Order and Plaintiffs
do not show good cause as to why this action should not be dismissed, the Court will
dismiss the action.
SO ORDERED.

C
CLAIRE C. CECCHI, U.S.D.J.

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